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Judgment
B. Subhashan Reddy, J.—This Letters Patent Appeal raises two important questions of law as to(1) Whether making a provision for pocket expenses amounts to maintenance capable of enlarging into a fulfledged right u/s 14(1) of Hindu Succession Act, 1956; and (2) Whether the defendant in a suit is obliged to prove the Will even in the face of admission of the Will by the plaintiff in the plaint.
The facts briefly stated, thus, are:
Ramchander Rao and Venugopal, Rao were consanguine brothers. Laxminarayana was the son of Ramachandar Rao and he was adopted by Venugopal Rao i.e., his junior paternal uncle as the latter had no issues. As the consent of his wife was necessary; Venugopalrao sought the consent of his wife Seethamahalaxmi. Venugopalrao thought it fit to secure the interests of his wife at the time of adoption of Laxminarayana so at to ensure that she does not suffer for her day-to-day expenses. As such, he executed registered settlement deed dated 15-1-1941 and simultaneously a registered deed dated 15-1-1941 evidencing the adoption of Laxminarayana. Disputes arose in the family after the adopted boy entered his adoptive parents family and the same culminated into filing of O.S. No. 69 of 1942 on the file of the Court of the Subordinate Judge, Narsapur seeking a declaration that adoption of Laxminarayana is not true and valid and as a counter-blast Laxminarayana filed O.S. No. 10 of 1943 on the file of the same court impleading both Venugopalrao and his adoptive mother Seethamahalaxmi claiming partition and separate possession of half share in the joint family properties. By common judgment dated 12-4-1944, the Court held that adoption was valid by dismissing O.S. No. 69 of 1942, while decreeing the suit for partition in O.S. No. 10 of 1943. While passing a decree for partition the court left open the right of the 2nd defendant i.e., Seethamahalaxmi to pursue her remedies in a separate suit for recovery of properties covered by settlement deed dated 15-1-1941 (Ex. A1) which comprises land of Acs. 11.00. Venugopal Rao preferred appeals in A.S. Nos. 270 and 280 of 1944 in Andhra High Court, but they too were dismissed. Consequently, specific items of properties were allotted to each of them i.e. Venugopalrao and Laxminarayana, entitled them to enjoy the same exclusively in view of finality of partition decree.
Seethamahalaxmi filed O.S. No. 29 of 1948 on the file of the Court of Subordinate Judge, Narsapur for recovery of possession of an extent of Acs. 11.00 of land covered by the settlement deed (Ex. A1) or in the alternative for the allotment of other properties equal in extent and value from out of the properties which fell to the shares of Venugopalrao and his adopted son Laxminarayana. The said suit was dismissed, aggrieved by which she preferred appeal in A.S. No. 777 of 1950 in the High Court of Andhra. While the appeal was pending in the High Court, Hindu Succession Act, 1956 came into force on 17-6-1956. Allowing the appeal of Seethamahalaxmi, by judgment dated 19-7-1956, the High Court ruled that Seethamahalaxmi was entitled to recover possession out of the properties allotted to Venugopatrao and his adopted son Laxminarayana of an extent equal to the value of Acs. 11.00 cts. to be determined by the trial Court.
Pursuant to the above decree, I.A. No. 1185 of 1957 was filed by Seethamalakshmi for passing a final decree and then the matter was compromised and a joint memo was fried on 24-4-1964 in the above I.A. to the effect that the land mentioned in Schedule I in the suit shall be enjoined by Seethamahalaxmi for her life-time and accordingly a decree (Ex. A4) was passed in terms of compromise and the possession of the lands mentioned therein were handed over to her.
Venugopal Rao had executed a registered Will dated 30-8-1957 (Ex. A5) bequeathing his properties to his wife Seethamahalaxmi. He died on 10-12-1967 and consequently, bequeathed properties devolved on Seethamahalaxmi. Out of the same, by a registered gift dated 10-9-1979 (Ex. A6), she had conveyed Item No. 1 of the plaint (O.S. No. 24/83) Schedule property to the 1st defendant viz., Valluri Jaganmohini Seethamahalaxmi who is the 1st appellant herein. Seethamahalaxmi had also executed a registered Will dated 14-10-1980 (Ex. A7) bequeathing her other properties (which she got under the Will Ex. A5). Seethamahalaxmi died on 4-4-1982. In result, the said bequeathed properties came into possession of the 1st appellant.
K. Laxminarayana, the adopted son of late Venugopalrao died during the month of Sept. 1977. His son Kupparthi Rama-chandar Rao, who is the plaintiff in the instant case, filed O.S. No. 24. of 1983 on the file of the Court of the Subordinate Judge, Narsapur seeking a relief of declaration of title over the properties mentioned in the plaint and also recovery of possession thereof and payment of past and future mesne profits against the defendants.
The suit schedule properties comprised of (1) Acs. 5.07 cts. of land in R.S. No. 178 of Seetharampuram village of Narsapur Taluq of West Godavary District, (2) Ac. 2.87 cts. of land in R.S. Nos . 265/2, 266/3, and 274/B2 (56 cents, Ac. 1.11 cts. 21 cents and 99 cents respectively) situtated in the same village; and (3) and extent of Acs. 5.00 of land in R. S. Nos. 359/1, 359/2, 343/3 and 340/2 (Ac. 1.10 cts.1, Ac. 1.16 cts., Ac. 2.55 cts., and Ac. 0.69 cts., respectively) situated at Kopparru village of Narsapur Taluq of West Godavary District. They are hereinafter referred to as ''Items 1, 2 and 3 of suit scheduel properties''. They are among the properties which were subject matter of the partition suit inter se Venugopal Rao and Laxminaryana in O.S. No. 10 of 1943. While Items 1 and 2 fell to share of Venugopal Rao, Item No. 3 fell to the share of Laxminarayana. In lieu of her Acs. 11. 00 of land which was subject matter of settlement deed, Seethamahalaxmi was delivered possession of Items 1 ands 3 in final decree proceedings under Ex. A4.
The premise on which the suit was filed was that Items 1 and 3 of the plaint schedule property were to be enjoyed by Seethamahalaxmi for her life and later to revert back to Laxminarayana and his heirs after her death and as such, the plaintiff was entitled to recover the same as the heir of late Laxminarayana and the Will executed by Venugopal Rao in favour of his wife is inoperative in so far as the above itmes are concerned. In so far as Item No. 2 is concerned, the claim was made on the ground that it was not covered by the said Will executed by Venu-gopal Rao in favour of Seethamahalaxmi, No claim is made with regard to other properties covered by the Will executed by Venugopal Rao in favour of Seethamahalaxmi or with regard to the properties bequeathed by Seethamahalaxmi in favour of defendant No. 1 (the 1st appellant herein). The entire suit was laid on the premises that though the 1st defendant is entitled for the other lands in view of the two Wills i.e., one executed by late Venugopal Rao in favour of Seethmahalaxmi and the other executed by Seethamalaxmi in favour of the 1st defendant, either the 1st defendant or the other defendnats, who are claiming through her, cannot retain Items 1 and 3 on the ground that it was only a life estate to Seethamahalaxmi and that consequent to her death, it stood reverted to the plaintiff being the heir of Laxminarayana and in so far as Item 2 is concerned, as the same did not form part of the Will executed by late Venugopal Rao, Seethamahalaxmi was not entitled to retain the same and eventually the 1st defendant also did not get any right to retain the same. The plaintiff has, thus, raised only two legal contentions and not factual. The legal ''contentions raised are -- as to whether the rights under Ex. A1 were the rights of manitenance capable of enlarging into absolute rights of ownership in favour of Seethamahalaxmi or whether she was a limited owner. While the 1st defendant pleaded that Seethamahalaxmi became the absolute owner on the premise that the rights under Ex. Al were in lieu of maintenance and they sprang into absolute right in view of Section 14(1) of Hindu Succession Act, 1956, the plea of the plaintiff was that Ex. Al was not in lieu of maintenance claim of late Seethamahalaxmi and that she was given Acs. 11.00 of land only towards her pocket expenses and that it was a life estate, not capable of springing into an absolute right and that Section 14(2) of Hindu Succession Act, 1956 governs the matter and not Section 14(1) thereof. The other one related to the right of retention of the 1st defendant of the land covered by Item No. 2 on the ground that the same was not bequeathed by late Venugopal Rao in favour of Seethamahalaxmi and that Seethamahalaxmi was not entitled to bequeath the same to the 1st defendant. The defendants, particularly, the 1st defendant were called upon to answer this and they contested regarding these two aspects. Insofar as defendant No. 2 is concerned, he did not claim any right in himself over the suit schedule properties and he was impleaded because he is the husband of the 1st defendant. Defendants 3 to 5 claim to be the tenants of the 1st defendant of the suit schedule properties comprising Items 1, 2 and 3. As such, the main defence is only that of the 1st defendant.
On the basis of the above pleadings, the following triable issues were framed by the trial Court:
(a) Whether Seethamahalaxmi had only life interest in the plaint schedule property and her interest is not enlarged u/s 14(1) of Hindu Succession Act, 1956?
(b) Whether in any view, Seethamahalaxmi became entitled to Item No. 1 of plaint schedule under registered Will dated 30-8-1957 of her husband Venugopal Rao?
(c) To what past and future profits, if any, the plaintiff is entitled?
The other issues framed are superfluous. The plaintiff chose not to adduce any oral evidence. As such, the question of adducing any rebuttal evidence by the defendants did not arise at all. With consent, Exs. A1 to A9 and Exs. B1 and B2 were marked. The trial Court, on hearing the arguments advanced on either side, held that Ex. A1 was not in lieu of maintenance claim of late Seethamahalaxmi and as such, Section 14(2) of Hindu Succession Act, 1956 was applicable and not Section 14(1) and that cosnequent to the death of Seethamahalxmi, the properties reverted back to the plaintiff and that the plaintiff is entitled to recover the possession of the suit schedule properties. With regard to mesne profits, even after holding that there is no proof with regard to the mesne profits, the trial court reserved the same to be decided in a separate application. Defendants 1 and 2 carried the matter in appeal to this High Court and the learned single Judge has framed an additional issue raised by the counsel for the plaintiff during the course of the arguments. After narrating the pleadings and contentions, the learned Judge says "Therefore, the two questions that arise for consideration in this appeal are -- (1) Whether the acquisition falls u/s 14(1) or Section 14(2) of Hindu Succession Act, 1956, and (2) Whether the execution of the Will dated 30-8-1957 in favour of Seethamahalaxmi is proved". The second aspect referred to above was never the subject matter of the suit at all. As stated above, the plaint itself was filed on the premises that the Will deeds were executed by Venugopal Rao in favour of Seethamahalaxmi and in turn by Seethamahalaxmi in favour of the 1st defendant. But the validity of the Will executed by Venugopal Rao with regard to bequeathing Items 1 and 3 of the suit schedule properties was questioned on the ground they were in possession of Seethamahalaxmi only as life estate. With regard to Item No. 2, the contention was that since the said item was not specifically mentioned in the Will dated 30-8-1957 executed by Venugopal Rao in favour of Seethamahalaxmi, the plaintiff was entitled to recover the possession of the same. While filing a plaint, the plaintiff is obliged to meet the requirements of Order VII, Rule 1(e) of C.P.C. which warrants the statement of facts constituting the cause of action and when it arose. It is pertinent to mention that cause of action is the back-bone of the entire lis and unless there is no cause of action, no lis can he initiated. The plaintiff is obliged to state his cause of action and when it arose. In the instant case, the facts constituting the cause of action are that in so far as Items 1 and 3 are concerned, Seethamahalaxmi held only life estate even though Item No. 1 was bequeathed under a Will executed by Venugopal Rao and that in so far as Item No. 2 is concerned, the same was not at all covered by the Will executed by Venugopal Rao in favour of Seethamahalaxmi and that the date of her death was the date of cause of action for entitlement of recovery of possession of the plaint schedule properties. The defendants were obliged only to answer the same and they did file a written statement countering the pleas of the plaintiff. Only those could be contentious issues and they were framed. There was no contention raised by the plaintiff with regard to the genuineness of the Will. As such, the plaintiff called upon the defendants only to answer the legality of the Will in so far as the suit schedule properties are concerned while approving the rights of the defendants under the Will with regard to the rest of the properties. What is more, the plaintiff himself files the certified extracts of the Will deeds dated 30-8-1957 executed by Venugopal Rao in favour of Seethamahalaxmi and dated 14-10-1980 executed by Seethamahalaxmi in favour of the 1st defendant. But the learned single Judge accepting the contention raised on behalf of the plaintiff held that inasmuch as the Will is not proved in accordance with the provisions of the Indian Evidence Act, the same cannot be taken cognizance of and that the plaintiff is entitled for the relief of recovery of possesion even on that count. With respect to the learned single Judge, we do not agree with this finding on the said issue. In fact, the learend Judge ought not to have entertained the said contention at all as the appeal is a continuation of the suit. It is not as if a plea was raised in the suit and a contentious issue was framed and the same went unanswered. It is also not such of the cases where the pleas have been raised, but issue is not framed and there is ample evidence on record from which the appellate court, if convinced, frames an additional issue and adjudicates. The instant case is such that the plaintiff himself admits the genuinity of the Will and the binding nature thereof for all other items of property excepting the suit schedule properties comprising three items. The plaintiff calls upon the defendants only to answer with regard to the validity of the Will in so far as the suit schedule properties are concerned. The cause of action, therefore, was confined only with regard to the legal validity of the Will confined to the suit schedule properties and not with regard to its truthfulness or genuineness of execution. While not raising any dispute regarding execution of the Will and the rights and title of the 1st defendant regarding other bequeathed properties, the legal dispute was raised regarding the operation of the Wilt over Items I to 2 of suit schedule properties. Thus, it is obvious that the genuinity of the Will was not the cause of action at all. When that was not the cause of action, rightly, the same was not raised an issue and as such there was no issue framed in that regard. That is the reason precisely, for the plaintiff not adducing oral evidence and only to choose to argue the matter straightway pointing out the recitals of the relevant documents and to construe the same correctly in accordance with law. Section 58 of the Evidence Act, 1872 reads:
"Facts admitted need not be proved:-- No fact need be-proved, if any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings."
As such, an admission in pleadings as to execution of document dispenses with the necessity of proof of execution even though such document was one required by law to be in certain form or proved in a certain way.
But, Mr. Anautha Babu, the learned counsel appearing for the respondents, strenuously contends that S. 58 of the Indian Evidence Act is general while S. 68 is specific and that specific provision always prevails over a general provision and that as such even though the Will is admitted in the instant case, the same binds only the executant u/s 70 of Indain Evidence Act and does not bind the plaintiff, who is a stranger to the Will. He has cited the decisions rendered in Girja Datt Singh Vs. Gangotri Datt Singh, , H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, and Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, . But, in all the judicial precedents referred to above, there was a specific denial with regard to the execution of the Will and there was a contentious issue raised in that regard and oral evidence was adduced on that aspect and the trial courts had adjudicated on the said issue and findings were recorded. Those factors are totally absent in the instant case. Execution of the Will was not at all denied by the plaintiff and on the other hand it is admitted, but the validity with regard to the suit items was challenged and that was stated to be the cause of action and the date of cause of action is the death of late Seetha-mahalaxmi, who was holding the possession of the said suit schedule properties. If the factum of execution of Will was disputed, certainly, the other items of the properties covered by the Will could have been claimed. But, that is not done in the instant case. The plaintiff by admitting the execution of the Will questioned the legal validity of the same only with regard to three items (suit schedule properties), and asked the relief of possession. It is no doubt true that special provision always overrides the general provision. But, in the instant case, special provision is not at all applicable. It is also true that proviso to Section 68 is not applicable in the case of a Will. Section 68 of the Indian Evidence Act reads:
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence."
As the Will is a document required by law to be attested, it shall not be used as evidence until at least one attesting witness is examined. That is only when either plaintiff seeks for a relief propounding a Will or when the defendant raises a specific plea setting up the Will as a defence to the claim made by the piaintift". But, where the plaintiff himself accepts the execution of the Will, but chooses to contest only on legal aspects touching upon the validity of the bequeathment of certain properties, Section 68 of Indian Evidence Act does not come into play and is totally inapplicable. The words ''it shall not be used as evidence'' contained u/s 68 of the Indian Evidence Act, are very significant while considering this aspect. In the instant case it is not that the defendant sought to use the Will as defence, but on the other hand, it is the plaintiff, who himself has filed the Will admitting the execution, but questioning the legal validity of the same in so far as certain properties are concerned. In that view of the matter, Section 58 of the Indian Evidence Act is applicable for the instant case and Section 68 is totally inapplicable. In the circumstances, we hold that the additional issue raised in the appeal ought not to have been permitted to be raised and we further hold that there was no obligation on the part of the defendants-appellants to prove the execution of the Will dated 30-9-1957 by Venugopal Rao in favour of his wife Seethamahalaxmi.
Coming to the vital contention which was in fact an important triable issue touching upon the provisions contained under subsections (1) and (2) of Section 14 of Hindu Succession Act, 1956, we hold that inasmuch as there is concurrent finding of fact to the effect that Ex. A1 did not create any maintenance rights, but in fact kept the claim of Seethamahalaxmi for maintenance in tact, it is Section 14(2) of the said Act which is applicable in the instant case and not Section 14(1) thereof. We have even independently gone through the recitals of both the deeds of settlement and adoption i.e., Exs. A1 and B1 together with Exs. A3, A4 and also Ex. B2. Ex. B2 is the certified extract of decree in A.S. No. 777 of 1950 on the file of the High Court of Andhra Pradesh basing upon which final decree proceedings were initiated in I. A. No. 1185 of 1957. In the course of the final decree proceedings, a compromise memo (Ex.A3) was filed. It is specifically mentioned in clauses (i) and (ii) thereof that the lands mentioned in the schedule appended were delivered to Seethamahalaxmi for her enjoyment for life. This compromise memo was filed on 24th April, 1964 and on the same date decree (Ex. A4) was passed in terms thereof. Clause (i) of the said decree -- Ex. A4 clearly states that the lands described in Schedules I and II annexed to the joint memo filed by the parties were allotted and delivered to Seethamahalaxmi for enjoyment for life. The said decree had become final and there was no complaint by Seethamalaxmi that the said decree was obtained by playing fraud or misrepresentation. One more important factor is that the said compromise was entered into and the decree was passed ,in terms there of on 24-4-1964, nearly 8 years later to the advent of Hindu Succession Act, 1956. Had Seethamahalaxmi intended to keep the same absolutely for her, such a clause would not have been incorporated. Either herself or her husband, who were parties to the compromise decree would not have agreed for the said clause limiting the rights of Seethamahalaxmi only till her life time, if really they felt that the lands under Ex. A1 were to be given in lieu of maintenance. In fact, it would have been recited that Seethamahalaxmi shall hold the same as her absolute property as the compromise was in the year 1964.
Mr. C.V.N. Sastry, the learned counsel appearing for the appellants had drawn our attention to the judgments rendered in V. Tulasamma v. V. Sesha Reddi AIR 1977 SC 1944, Gulwant Kaur and Another Vs. Mohinder Singh and Others, , and M.P. Lakshmi Animal v. M.P. Thillanayakon Pillai 1987 (2) APLJ 97 (SC) in support of his contention that Ex. Al is in lieu of maintenance and in any event, as Seethamahalaxmi was in possession, the possession is deemed to be in lieu of maintenance as the right of maintenance is inherent. In V. Tulasamma v. V. Sesha Reddi AIR 1977 SC 1944 supra, it was held that a Hindu female acquired property in lieu of maintenance gets absolute right traceable to Section 14(1) of Hindu Succession Act, 1956, in spile of prescribing limited interest in compromise. Same is the proposition laid down in Gulwant Kaur and Another Vs. Mohinder Singh and Others, . In M. P. Lakshmi Animal v. M. P. Thillanayakon Pillai, 1987 (2) APLJ 97 (SC) supra, it was held that without mentioning the nature of the right to be enjoyed, if a Hindu female is put in possession of the property with a right to take income therefrom, it must be presumed that the said property is given to her in lieu of her maintenance. But, these decisions are of no help to support the contention of Mr. C.V.N. Sastry, the learned counsel for the appellants. In the instant case, Ex. A1 settlement deed coupled with Ex. B1 adoption deed makes it amply clear, without any ambiguity, that the land of Acs. 11.00 was to be delivered to Seethamahalaxmi towards her casual expenses keeping her right to claim maintenance intact. The words in Ex. A1 "In order-to avoid inconvenience to you, if differences should arise in future between you and the adopted boy Laxminarayana, towards pocket money to you, the land of extent of Acs. 11.00 mentioned in the schedule hereunder together with several kinds of fruit trees standing thereon, has been given to you in order that you may enjoy the same during your life time without powers thereto by way of gift, sale or otherwise and in order that the same may pass in my family after your life time. That you shall not claim after my life time, any other reliefs excepting maintenance" are very significant and explicit. In view of the said express words, question of deeming or assuming something does not arise at all. Further, the said clear intention of giving acs. 11.00 of land under Ex. A1 to Seethamahalaxmi was only as a life interest is amply corborated by the compromise memo -- Ex. A3 and the decree passed in terms thereof -- Ex. A4 which had become final and binding inter partis and the persons through or under them i.e., the appellants and the respondents herein. As such, the only irresistible conclusion can be that Seethamahalaxmi did not acquire any absolute right u/s 14(1) of the Hindu Succession Act, 1956 for the lands under Items 1 and 2 of suit schedule properties and Section 14(2) of Hindu Succession Act, 1956 governs and not Section 14(1) thereof. The decision rendered in Kothi Satyanarayana Vs. Galla Sithayya and Others, , cited by Mr. T. Anantha Babu, the learned counsel for the respondents in support of his contention, fortifies our view.
In view of Ex. A5 Will executed by Venugopal Rao in favour of his wife Seetha-mahaiaxmi, she had become the owner and possessor exclusively with absolute rights of Items 1 and 2 consequent on the death of Venugopai Rao and she was competent to alienate or transfer the same as she deemed fit. As such, under Ex, A6 gift settlement, the rights under Item 1 were validily conveyed in favour the 1st defendant. Likewise, Item 2 of suit schedule property also stood bequeathed to Seethamahalaxmi by Venugopal Rao under Ex. A5 will and absolutely there is no ambiguity in the same. In fact, it is very emphatically and categorically stated by Venugopal Rao in his will Ex. A5 that all his properties shall be enjoyed only by his wife and shall not go either to Laxminarayana or to the family of Ramachandra Rao. If that was the strong desire of the testator that all his properties shall be enjoyed by his wife after his death and that nothing should go either to his brother''s family or to Lakshminaryana, it is beyond any pale of doubt that Item 2 of the suit schedule property was also bequeathed to Seethamahalaxmi and consequent on his death, she became the absolute owner thereof and was competent to further bequeath in favour of the 1st defendant (1st appellant) which she did under Ex. A7 will.
In view of what is stated supra, the 1st defendant-lst appellant had been holding Items 1 and 2 of suit schedule properties as absolute owner and possessor and was not liable to be evicted therefrom. In so far as Item No. 3 of suit schedule property is concerned, the situation is altogether different as the same fell to Laxminarayana in partition and as the same was incapable of being bequeathed under Ex. A5 Will, and as the same did not spring into absolute right of Seethamahalaxmi and as Section 14(2) of Hindu Succession Act, 1956 is applicable in so far as the said Item No. 3 is concerned, we affirm the findings of both the trial court and the learned single Judge that the plaintiff is the owner of Item No. 3 of suit schedule property and shall be entitled to recover possession thereof together with mesne profits, both past and future, right from 4-4-1982 (date of death of Seethamahalaxmi) till eviction. We also make it clear that if any amount/s have either been paid to the plaintiff or deposited in the Court, the same shall be adjusted towards the said mesne profits. The judgments and decrees rendered by the trial court and the learned single Judge of this court are set aside in so far as Items 1 and 2 of suit schedule properties are concerned and are affirmed in so far as Item No. 3 thereof.
The Letters Patent Appeal is allowed in part. Each party shall bear their own costs.
Appeal allowed.