- (1.) The appellant, the second defendant in O.S.No.107 of 1980 on the file of Subordinate Judge, Rajahmundry and the second appellant in A.S.No.16 of 1991 on the file of I Addl. District Judge, East Godavari, Rajahmundry, being aggrieved of the decrees and judgments made by both the Courts decreeing the suit declaring the title of the plaintiffs 2 to 4 in relation to the plaint schedule property and granting perpetual injunction as prayed for, had preferred the present Second Appeal.
(2.) The Second Appeal was dismissed for default against R-8, R-10, R-11 and R-12. The substantial questions of law, which had been pointed out by the learned counsel representing the appellant, are as hereunder: "(i) Whether a suit for declaration is maintainable after 24 years, after execution of deed of settlement seeking a finding annulling such settlement deed? (ii) Whether in respect of the property given in Pasupu-Kumkuma to a daughter at the time of marriage can be recovered back when the daughter dies, leaving her daughter as sole heir? (iii) Whether the plaintiff who has been managing the property on behalf of minor grand-daughter can be said to be in occupation of the property in her own right, when admittedly the said property was given towards Pasupu-Kumkuma to the minor daughter's mother at the time of marriage? (iv) Whether a registered settlement deed executed by the parties can be declared as null and void without any proper evidence for the same? (v) In the facts and circumstances of the case whether Chellayamma in whose favour the settlement deed was executed becomes absolute owner after Hindu Succession Act came into force or the plaintiff becomes absolute owner by succession in conflict with the said provisions?"
(3.) Sri A.Ramalingeswara Rao, the learned counsel representing the appellant would maintain that though the appeal was dismissed for default against certain of the respondents, they are not contesting parties, and hence, the Second Appeal to be decided on merits. The learned counsel also had taken this Court through the respective pleadings of the parties, the evidence available on record and pointed out to the relevant findings recorded by the Courts of first instance and also the appellate Court and would maintain that when specific stand was taken relating to the non-existence of Venkatarao and when no acceptable evidence is forthcoming, both the Courts totally erred in recording such findings as though there was one Venkatarao and by virtue of death of Venkatarao, the mother became the heir. The counsel also would further contend that it is not as though the execution of the settlement deed is in controversy and in fact the same was acted upon, and in relation to one item, there is some controversy and after a long lapse of time, doubting the recitals in the said settlement deed-Ex.B1 especially in the light of Ex.A12, an unregistered partition list, definitely cannot be sustained. The learned counsel also had pointed out that the findings recorded even in relation to Ex.A17 cannot be sustained for the reason that Ex.B1 is dated 01.04.1956, whereas Ex.A17 is 13.07.1960. The counsel also commented that Ex.A12, being an unregistered partition list, said to be of the year 1948, the same is definitely suspicious and antedated one, and in the light of the same, the appellant is bound to succeed.;