1, This Second Appeal is filed aggrieved against the Judgment and decree in A.S.No.17 of 2000 on the file of Senior Civil Judge, Narsapur, dated 20.02.2004, confirming the Judgment and decree in O.S.No.217 of 1992 on the file of Junior Civil Judge, Palakol, dated 21.03.2000.
2. The appellants herein are the defendants and the respondents herein are the plaintiffs in the Original Suit No.217 of 1992 on the file of Junior Civil Judge, Palakol.
3. The plaintiffs initiated action in O.S.No.217 of 1992 on the file of Junior Civil Judge, Palakol, with a prayer for possession of plaint ‘A’ schedule property and sites appurtenant thereto after evicting the 2nd defendant and her men and also for payment of present and future profits for the house portion.
4. The learned Junior Civil Judge, Palakol, decreed the suit by granting possession of plaint ‘A’ schedule property and sites appurtenant thereto and the 2nd defendant and her men are directed to vacate the same within three months from the date of decree, failing which, plaintiffs are at liberty to get the possession of the same through process of law. Felt aggrieved of the same, the unsuccessful 2nd defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Senior Civil Judge, Narsapur, dismissed the first appeal and confirmed the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful 2nd defendant approached this Court by way of second appeal.
5. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the original suit.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in OS.No.217 of 1992, is as follows:
The suit schedule property originally belonged to one Penmetsa Bapiraju, son of Subbaraju. He had executed a registered settlement deed dated 01.09.1981 by settling his property in favour of his brother's son i.e., the 1st plaintiff and his wife i.e., the 2nd plaintiff and also to his wife for their enjoyment during their life- time and later to the children of the plaintiffs. However, the wife of donor Penmetsa Bapiraju was given right to enjoy only X, X-1 and X-2 portion of the house and sites appurtenant to the same during her life-time. The said Penmetsa Bapiraju died on 21.08.1984, but lived in some portion of the house covered by the settlement deed along with his wife till the date of his death. However, the said donor Bapiraju executed the registered sale deed along with his wife and one Penmetsa Bapiraju (junior), who is claiming that he is the adopted son of late Penmetsa Bapiraju, in respect of Plaint ‘A’ schedule property on 11.07.1983 for a consideration of Rs.74,000/-, in favour of 2nd defendant without having any right to alienate the property by the virtue of the settlement deed. But the 2nd defendant was inducted into possession of the plain ‘A’ schedule property by the virtue of the registered sale deed and the 2nd defendant being not a bonafide purchaser not entitled to claim any right over the plaint A schedule property under the sale deed dated 11.07.1983. Therefore, the plaintiffs filed the suit for the recovery of possession of plaint 'A' schedule property after evicting the 2nd defendant and her men therefrom. The plaintiffs also questioned the alleged adoption of one Penmetsa Bapiraju (junior) and his right to alienate the property covered by the settlement deed.
7. During the pendency of the suit the first defendant died. The 2nd defendant resisted the suit by filing her written statement by denying all the averments in the plaint and contended that the suit is not maintainable under law.
8. The brief averments of the written statement filed by the 2nd defendant are as follows:
The 2nd defendant though admitted the relationship between the parties, she denied the execution of registered settlement deed dated 01.09.1981 in favour of plaintiffs, their sons and 1st defendant and the same was acted upon. She claimed that she purchased the plaint schedule property by virtue of sale deed dated 11.07.1983 executed by 1st defendant and her adopted son Bapiraju (junior) for consideration of Rs.36,000/- and she took over the possession of the same immediately and ever since she has been in possession and enjoyment of the property by paying taxes to the knowledge of 1st defendant. She also raised a contention that since the said late Bapiraju had no children, he adopted junior Bapiraju, s/o Ramaraju as his son as per Hindu Religious Rites and customs in the year 1970. But the plaintiffs by taking undue advantage of the old age of senior Bapiraju used their undue influence and got the settlement deed dated 01.09.1981 executed by him, but the same is neither valid as per law nor binding on the 2nd defendant. Further the plaint schedule property is the joint family property of late Penmetsa Bapiraju, and, therefore, his adopted son Bapiraju has got half share in the property and the settlement deed executed by Senior Bapiraju is not valid under law.
9. On the basis of above pleadings, the learned Junior Civil Judge, Palakol settled the following issues for trial:
"1. Whether the settlement deed dated 01.09.1981 is true and valid
2. Whether the plaintiff is entitled for possession of the petition schedule property
3. To what relief"
10. During the course of trial in the trial Court, on behalf of plaintiffs PW1 to PW4 were examined and Ex.A1 to Ex.A8 were marked. On behalf of 2nd defendant DW1 was examined and Ex.B1 to Ex.B3 were marked.
11. The learned Junior Civil Judge, Palakol, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit granting possession of plaint ‘A’ schedule property and sites appurtenant thereto and directed the 2nd defendant and her men to vacate the same within three months from the date of decree, failing which, plaintiffs are at liberty to get the possession of the same through process of law and with regard to suit claim for present and future profits against the 2nd defendant, the plaintiffs have to file separate application. Felt aggrieved thereby, the unsuccessful 2nd defendant filed the appeal suit in AS.No.17 of 2000 before the Senior Civil Judge’s Court, Narasapur, wherein, the following points came up for consideration.
"1. Whether Ex.A1 settlement deed is a genuine one and binding on 2nd defendant
2. Whether the suit deemed to have been abated against the plaintiffs to make the judgment and decree invalid under law and in executable
3. Whether the appeal may be allowed to set aside the judgment and decree of the lower Court"
12. The learned Senior Civil Judge, Narsapur, i.e., first appellate judge, after hearing the arguments, answered the points, as above, against the defendants/appellants and in favour of the plaintiffs/respondents and dismissed the appeal of the 2nd defendant. Felt aggrieved of the same, the unsuccessful 2nd defendant in OS.No.217 of 1992 filed the present second appeal before the composite High Court of Andhra Pradesh, Hyderabad.
13. When the matter was before the composite High Court of Andhra Pradesh, Hyderabad, the following substantial question of law was framed on 19.04.2004:
"1. Whether in the facts and circumstances of the case, the Courts below went wrong in holding that Section 14 (2) of Succession Act is not applicable, particularly where life estate is given to the widow, which stands converted into full estate by operation of law"
14. In addition to the above substantial question of law framed by the composite High Court, during the course of hearing of both sides counsels, on 04.10.2023, the following substantial questions of law are framed for consideration:
"1. Whether the persons in possession having been invested with a title deed dated 11.07.1983 is justifiable to consider the rights of the beneficiaries under Ex.A1-gift settlement deed dated 01.09.1981
2. Whether the unilateral cancellation of the gift settlement deed dated 01.09.1981 effected by the executant himself is justifiable in the wake of the maintenance and welfare of parents and Senior Citizens Act, 2007
3. Whether the suit instituted by the respondents/plaintiffs is barred by limitation
4. Whether the appellant/2nd defendant is a bona fide purchaser for value in good faith and without notice"
15. Heard Sri K.A.Narasimham, learned counsel, representing Sri P.B.Vijaya Kumar, learned counsel for 2nd defendant and Sri K.Chidambaram, learned senior counsel, representing Sri Turaga Sai Surya, learned counsel for plaintiffs.
16. Learned counsel for 2nd defendant would contend that both the Courts below erred in decreeing the suit filed by the plaintiffs and he would submit that the suit is barred by limitation and he would further contend that without praying relief of declaration of cancellation of revocation deed, suit itself is not at all maintainable. With these submissions, the learned counsel would contend that the judgment of the Senior Civil Judge in AS.No.17 of 2000 is to be set aside by dismissing the suit of the plaintiffs.
17. Learned senior counsel appearing on behalf of plaintiffs would contend that the alleged revocation deed is non-est in the eye of law, questioning of seeking cancellation of revocation deed does not arise and the suit is filed within a period of limitation and he would further contend that there is no substantial questions of law in the second appeal. With these submissions, the learned senior counsel appearing for respondents in the second appeal would contend that the second appeal is liable to be dismissed.
18. In order to prove the case of the plaintiffs, the plaintiffs relied on the evidence of PW1 to PW4 and Ex.A1 to Ex.A8. PW1 is the plaintiff, PW2 and PW3 are the attestors of Ex.A1 settlement deed dated 01.09.1981 which was registered in the registrar office. PW4 is the scribe of settlement deed. All the witnesses PW2 to PW4 supported the case of the plaintiffs. As per their evidence, the Penmetsa Bapiraju executed Ex.A1 registered settlement deed. The plaint schedule property is a self acquired property of Penmetsa Bapiraju, son of Subbaraju and Ex.A2 and Ex.A3 reveals the same. The first plaintiff is the son of brother of Bapiraju, second plaintiff is the wife of first plaintiff and first defendant is the wife of Penmetsa Bapiraju and Bapiraju had no children, out of free will, he executed a registered settlement deed dated 01.09.1981 by settling his property in favour of the plaintiffs and also in favour of the first defendant. Ex.A1 goes to show that the Penmetsa Bapiraju had no children and out of his free will, he executed a registered settlement deed dated 01.09.1981 settling his properties in favour of the plaintiffs and his wife for their enjoyment during their life time and later absolute rights were given to the children of the plaintiffs. The wife of donor Penmetsa Bapiraju was given right to enjoy only X, X1 and X2 portions of the house and sites appurtenant to the same during her life time. It is not in dispute that the said Penmetsa Bapiraju died on 21.08.1984, but lived in some portion of the house covered by settlement deed along with his wife till the date of his death. As per the recitals of Ex.A1, the property mentioned in Ex.A1 was delivered to the plaintiffs and the plaint ‘A’ schedule property consisting of site is shown in the plaint schedule as PQRS and the tiled house also situated therein shown as EFGH in the plaint plan and as per the recitals of the settlement deed self-acquired property of Bapiraju has to be enjoyed during his life time without alienation and after his death the first defendant has to enjoy X, X1 and X2 portions of the house and sites appurtenant to the same and the same has to be enjoyed during her life time without any right of alienation and subsequently, the plaintiffs has to enjoy the said schedule property and after the death of the plaintiffs absolute rights were given to the children of the plaintiffs in the plaint schedule property. In fact, execution of Ex.A1 registered settlement deed is not at all disputed by the defendants. The first defendant did not enter into the witness box and the first defendant died during the pendency of the suit. The second defendant also did not enter into the witness box, the husband of second defendant is examined as DW1. The contention of the second defendant is that on 11.07.1983 she purchased the ‘A’ schedule property under original of Ex.B1.
19. The learned counsel for plaintiffs would contend that once gift deed is executed by the settlor, if he intends to cancel the said gift settlement deed, he has to approach the Court by filing the suit for cancellation of the said settlement deed but not through registered instrument for cancellation in registrar office. The learned counsel for plaintiffs placed a reliance of Apex Court in the judgment in between Thota Ganga Laxmi and others Vs. Government of Andhra Pradesh and others 2012(3) ALT 50. In that decision it was held that:
In our opinion, there was no need for the appellants to approach the Civil Court as the said cancellation deed dated 04.08.2005 as well as registration of the same was wholly void and non-est and can be ignored altogether. For illustration, if ‘A’ transfers a piece of land to ‘B’ by a registered sale deed, then, if it is not disputed that ‘A’ had the title to the land, that tile passes to ‘B’ on the registration of the sale deed (retrospectively from the date of the execution of the same) and ‘B’ then becomes the owner of the land. If ‘A’ wants to subsequently get the sale deed cancelled, he has to file a civil suit for cancellation or else he can request ‘B’ to sell the land back to ‘A’ but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.
In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under S.69 of the Registration Act, which states:
“The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed or conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law”.
The law is well settled that the settlor once executed the settlement deed bequeathing his rights to any person, later he cannot have any right to cancel the settlement deed on any ground unilaterally in a registrar office. In case if the settlor wants to cancel the said registered settlement deed with a reason that the document was obtained from him by the beneficiaries by playing fraud, then the settlor under the title shall seek the cancellation of the settlement deed only by filing a civil suit in a Court of law, but not by executing a revocation deed. Therefore, the ratio laid down as stated supra squarely applicable to the present facts of the case. Therefore, Ex.B2 cancellation deed is non-est in the eye of law. Therefore, Ex.A1 is having legal sanctity for all the consequences to convey the rights in the property duly mentioned in Ex.A1.
20. The case of the 2nd defendant is that she purchased the plaint ‘A’ schedule property under registered sale deed dated 11.07.1983 under Ex.B1 from Penmetsa Bapiraju and his wife Suryakanthamma and their adopted son Bapiraju (junior). The fact remains is that the Bapiraju (senior) i.e., the settlor lived in the scheduled house till 21.08.1984 i.e., till his death. In fact, Bapiraju (senior) has no right to alienate the schedule property to second defendant and the first defendant also has no right to transfer her rights to second defendant because the first defendant is having only life interest in the said property. It is not in dispute the first defendant is no more. In fact, the first defendant had no pre-existing right of maintenance because she lived with her husband during her life time and therefore, she cannot claim absolute rights in X, X1 and X2 portions of the house, in view of the recitals of the Ex.A1 settlement deed. The material on record reveals that Bapiraju (junior) filed a suit in OS.No.33 of 1982 on the file of Senior Civil Judge, Rajolu against Bapiraju (senior) and others. Ex.A7 goes to show that in the said suit, the Bapiraju (senior) filed a written statement with a specific plea that the Bapiraju (junior) is not his adopted son. He also stated in the said written statement about the execution of Ex.A1 registered settlement deed and the contents of the said settlement deed also stated by Bapiraju (senior) in the said written statement and the said judgment is final, the same is not set aside by appellate Court.
21. The contention of the second defendant is that she purchased the plaint ‘A’ schedule property under Ex.B1 registered sale deed dated 11.07.1983 from Bapiraju (senior), his wife (first defendant) and their adopted son Bapiraju (junior). As stated supra, in OS.No.33 of 1982 which was filed in Senior Civil Judge’s Court, Rajolu by Bapiraju (junior) against Bapiraju (senior) and his wife and plaintiffs herein and the children of the plaintiffs for partition by claiming the share on a pretext that he is the adopted son of Bapiraju (senior) and the first defendant herein and in the said suit, the husband of first defendant herein i.e., Bapiraju (senior) pleaded that Bapiraju (junior) is not their adopted son. The written statement of Bapiraju (senior) in the said suit reveals the same. The said suit was dismissed by the learned Senior Civil Judge, Rajolu on 09.09.1985. The same is ended with finality. Moreover, the second defendant to prove her contents of written statement did not enter into the witness box. As per the evidence of DW1, after enquiry regarding the suit schedule property, his wife purchased the said property and second defendant did not obtain encumbrance certificate and did not obtain any link document and he do not know whether Suryakantham was having right in the schedule property and as per the directions of elders and scribe, the name of the Suryakantham was mentioned as one of the vendors and they did not obtain any document from their vendors.
22. As per the evidence of DW1, they purchased the stamps for executing the original of Ex.B1 for a value of Rs.74,000/- being the sub-registrar’s value and part of the sale consideration was paid by them before scribing of original of Ex.B1. The balance sale consideration was paid by them on the date of registration of original of Ex.B1. As per his evidence, in the original of Ex.B1, it was mentioned that the entire sale consideration of Rs.36,000/- was paid by them at the time of registration. He further stated that he got mentioned in the original of Ex.B1 that Rs.36,000/- was paid to their vendors before the sub registrar. He further admits the attestors of original of Ex.B1 and also the identifying witnesses before the sub- registrar do not belong to their village or to their community and he does not have enmity in the village. He further admits that he did not get issued any legal notice to their vendors after receiving notice from the plaintiffs regarding the schedule property and their vendors stayed in the schedule property subsequent to the sale of schedule property till the death of the Bapiraju. It is not in dispute that the original link documents are with the plaintiffs. Therefore, the above circumstances clearly reveals the 2nd defendant is not a bonafide purchaser. By giving cogent reasons, the first appellate Court held that even if it is believed that Ex.B1 was executed for the consideration thereunder by the late Penmetsa Bapiraju and his wife first defendant and another Bapiraju (junior), still the same is invalid because of Ex.A1 settlement deed executed in favour of the plaintiffs and their children and so the said Bapiraju, the settlor of Ex.A1, or his wife, first defendant, had no right to alienate the same property once settled in favour of the plaintiffs by a valid document and without seeking the cancellation of the same under a Court of Law. The first defendant or her husband Bapiraju (senior) and Bapiraju (junior) have no right to execute Ex.B1 sale deed, since they are not having any absolute rights in the schedule property as Ex.A1 settlement deed is a valid document and it was not cancelled through Court of law. As stated supra, there is no need to approach the Civil Court for cancellation of the registered sale deed or cancellation of Ex.B2 because same are void and non-est in the eye of law and can be ignored together. In view of the Rule 26 (i) (k) relating to Andhra Pradesh under Section 69 of Registration Act party has to approach the cancellation of settlement deed through Court of law but not by way of registered rectification deed. As stated supra, in view of the registered settlement deed executed by Bapiraju (senior), the first defendant or her husband cannot transfer the rights to third parties as per Ex.A1 settlement deed. The said Ex.B1 sale deed cannot be taken into consideration and the said sale deed is not a bona fide transaction. As stated supra, Ex.B2 cancellation of Ex.A1 settlement is non-est in the eye of law.
23. A reliance has been placed by the learned counsel for second defendant in the judgment of Supreme Court of India in between Thota Ganga Laxmi and another Vs. Government of Andhra Pradesh and others 2012(1) ALD 90 (SC). In that decision it was held that:
In our opinion, there was no need for the appellants to approach the Civil Court as the said cancellation deed dated 04.08.2005 as well as registration of the same was wholly void and non-est and can be ignored altogether. For illustration, if ‘A’ transfers a piece of land to ‘B’ by a registered sale deed, then, if it is not disputed that ‘A’ had the title to the land, that tile passes to ‘B’ on the registration of the sale deed (retrospectively from the date of the execution of the same) and ‘B’ then becomes the owner of the land. If ‘A’ wants to subsequently get the sale deed cancelled, he has to file a civil suit for cancellation or else he can request ‘B’ to sell the land back to ‘A’ but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.
A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non-est and meaningless transactions.
Here in the present case, the dispute is first defendant or her husband or Bapiraju (junior) have no right to execute the alleged sale deed in favour of second defendant. Therefore, question of obtaining cancellation of sale deed of second defendant through a Court of law does not arise. Here the crucial point is the husband of first defendant executed a settlement deed which was registered in a registrar office in favour of first defendant and plaintiffs herein and the husband of first defendant created a vested remainder rights to the plaintiffs and first defendant herein and absolute rights to the sons of the plaintiffs.
24. The learned counsel for appellant/ second defendant relied on a decision in between Dhurandhar Prasad Singh Vs. Jai Prakash University and others AIR 2001 SC 2552 [LQ/SC/2001/1476] . Here in the present case, the first defendant is shown as a proforma party and possession is with second defendant, since the first defendant died issueless in view of the rights under Ex.A1 settlement deed, the suit is filed for possession and so also because second defendant is in a possession of the suit ‘A’ schedule property. Therefore, the suit is not in bad in law.
25. Another reliance is placed by the learned counsel for the appellant/ defendant No.2 in the judgment in between Yellamilli Satyanarayana Murthy Vs. Bokka Ramachandra Rao 2006(3) ALT 545 (S.B.). The present suit is not for declaration of title. The learned counsel for second defendant placed another reliance of Privy Council, dated 24.02.1939 in between Simon Christopher Vs. Alfred Christy. In the said decision also it is held that the document executed under registered instrument must stand until set aside by the competent Court. Therefore, in the present case, cancellation of settlement deed vide Ex.B2 is not valid, since registered settlement deed is not cancelled by a competent Court.
26. The learned counsel for 2nd defendant placed another reliance of judgment of Hon’ble Supreme Court of India in between Kochukakkada Aboobacker (dead) by L.Rs and others Vs. Attah Kasim and others AIR 1996 SC 3111 [LQ/SC/1996/115] . In that decision it was held that:
Ex.A3 is a crucial document in establishing the title of the plaintiffs in the property. In those judicial proceedings it was declared that the defendants in that suit had no title to the trees. It would appeal that in the island, the title to the trees is relatable to the title to the land. Under those circumstances, the High Court has proceeded on the basis that it was relatable to the title to the property.
Here in the present case Ex.A1 settlement deed established the rights of the plaintiffs. Therefore, the settlor cannot execute a sale deed in favour of the third party by ignoring the registered settlement deed executed by the settlor. Another Crucial point is that the execution of Ex.A1 registered settlement deed by the settlor is not in dispute by other side.
27. The learned counsel for 2nd defendant placed a reliance of judgment of Apex Court in between Kanwar Singh Saini Vs. High Court of Delhi (2012) 4 SCC 307 [LQ/SC/2011/1291] . In that decision it was held that:
When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, “that performance cannot be enforced in any other manner”. Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act.
28. A reliance has been placed by the plaintiffs’ counsel in the judgment of High Court of Andhra Pradesh at Hyderabad in between Pedda Jagannadha Rao and others Vs. Renanki Janikamma 2007(3) ALD 442. In that decision it was held that:
The respondent proved that Ex.A1 is a gift deed and that the possession of the property covered by it had passed on to her. Therefore, Ex.B1 and Ex.B2 cannot result in any legal consequences. The gift deed, which is followed by delivery of possession of the property to the donee, cannot be cancelled, except through the procedure prescribed by law under the relevant grounds stipulated under the Transfer of Property Act and the Contract Act. Unilateral cancellation of the gift deed, which has been acted upon, cannot result in any legal consequences. Therefore, Ex.B1, the deed of cancellation, and Ex.B2, a consequential deed, executed in favour of the first appellant, are of no legal consequence and do not have any impact upon the operation of Ex.A1.
Here, in the present case Ex.A1 gift deed is a registered gift deed, in which the settlor settled rights in favour of the plaintiffs for ‘A’ schedule property and for remaining property life interest was given to his wife-first defendant and ‘A’ schedule property vested remainder was given under Ex.A1 to the plaintiffs. Now, the settlor or his wife are no more and they died issueless. Hence, Ex.A1 settlement deed is proved by the plaintiffs. Ex.B1 sale deed said to have been obtained by the second defendant from Bapiraju (senior), his wife and Bapiraju (junior) cannot result in any legal consequences, since Ex.A1 registered gift deed cannot be cancelled except under a due process of law. Here Ex.B1 sale deed is dated 11.07.1983, Bapiraju (senior) died on 21.08.1984, suit is filed in the year 1986 i.e., 19.06.1986 within three years from the date of alleged sale deed Ex.B1. On knowing the alleged sale deed, the plaintiffs issued Ex.A5 notice on 13.08.1985 questioning about the sale deed said to have been obtained from the first defendant and Bapiraju (senior) and Bapiraju (junior), because they have no right to execute a sale deed in favour of the second defendant. As stated supra, since Ex.A1 registered settlement deed is a valid document and it was not cancelled through a Court of law, therefore, the suit is filed within a period of limitation.
29. As stated supra, in the present case, the settlor executed a registered settlement deed dated 01.09.1981 by settling his property in favour of his brother’s son, i.e., the first plaintiff and his wife and also to his wife, i.e., first defendant, for their enjoyment during their life time and later the absolute rights were given to the children of the plaintiffs. The material on record reveals that the wife of donor Penmetsa Bapiraju (senior) was given right to enjoy only with regard to X, X1 and X2 portions of the house and sites appurtenant to the same during her life time. The said Bapiraju (senior) died on 21.08.1984, he lived in the same portion of the house covered by registered settlement deed along with his wife till the date of his death. The case of the second defendant is the said Bapiraju executed a registered sale deed in respect of plaint ‘A’ schedule property on 11.07.1983 along with his wife and Bapiraju (junior), who is claimed to be adopted son of the donor Bapiraju in favour of second defendant, without having any right to alienate the property by virtue of Ex.A1 registered settlement deed. As stated supra, the alleged adoption of Bapiraju (junior) is not at all proved by the second defendant. The learned counsel for appellant would submit that the present suit is filed for recovery of possession of ‘A’ schedule property during the life time of wife of settlor, the plaintiffs cannot claim recovery of possession during the life time of first defendant. Here the first defendant is shown as a proforma party, no claim is made against the first defendant. As stated supra, the Ex.B1 registered sale deed was obtained from the first defendant and her husband and Bapiraju (junior). Therefore, the suit filed by the plaintiffs for recovery of possession is maintainable.
30. Having regard to the overall facts and circumstances of the case, I am of the considered view that the trial judge and first appellate judge rightly appreciated the evidence and legal principles and learned Senior Civil Judge rightly dismissed the first appeal. Therefore, the findings of the Courts below are held in accordance with law and there are no merits in the present appeal.
31. In the result, the second appeal is dismissed. There shall be no order as to costs.
32. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
