TMI Blog1994 (1) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Laxminarayana, the adopted son of late Venugopalrao died during the month of Sept. 1977. His son Kupparthi Ramachandar 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. 7. 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) situated 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 schedule properties'. They are among the properties which were subject matter of the partition suit inter se Venugopal Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. A1 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding other bequeathed properties, the legal dispute was raised regarding the operation of the Wilt over Items 1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plaintiff. 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 under Section 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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 v. Mohinder Singh: [1987]3SCR576 , and M.P. Lakshmi Animal v. M.P. Thillanayakon Pillai 1987 (2) APLJ 97 (SC) in support of his contention that Ex. A1 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 v. Mohinder Singh, [1987]3SCR576 (supra). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 validity 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 Lakshminarayana, 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. 14. In view of what is stated supra, the 1st list appellant had been holding Items 1 and 2 of suit schedule prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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