Decided on January 22,1969

Latchamma Respondents


VENKATESWARA RAO,J. - (1.)This is an appeal from the judgment and decree in O.S. 56/63 on the file of the Fourth Additional Judge, City Civil Court, Hyderabad. 1st defendant in the suit is the appellant herein.
(2.)The respondent filed the suit for declaration of her title to the plaint schedule properties and recovery of possession thereof together with mesne profits, claiming to have become entitled thereto as the nearest heir of her brother, Raj Reddy, who died possessed of the same, issueless and intestate, in the year 1961 and alleging that the 1st defendant, who is the step-mother of the last male holder, has been in unlawful possession of the suit properties and failed to vacate the same and deliver possession thereof to her despite demands. The 1st defendant filed written statement admitting the relationship set out in the plaint but contending inter alia that she has been in exclusive possession of the suit properties in her own right ever since the death of her husband, Gopal Reddy, in the year 1947 as Raji Reddy, who was then a minor, happened to be under her protection, that the plaintiff has, therefore, no manner of right or title to the said properties and that she has also since alienated item 8 of the plaint schedule in favour of defendant 2 and 3 under a registered sale deed dated 4.3.62. On a consideration of the evidence adduced before him, the learned trial Judge held against the 1st defendant on all the issues arising on the contentions raised by her. It came to light during the trial of the suit that Raj Reddy died leaving behind him his widow Ananthamma, besides the plaintiff and the 1st defendant. But having regard to the evidence of Sudershan Reddy (P.W. 3), the brother's son of Gopal Reddy, that Ananthamma has since remarried and has been living with her second husband,the learned Judge concluded that she can no longer be regarded as a heir entitled to succeed to the properties of late Raj Reddy and that the plaintiff, who is his sister and the next nearest heir, has therefore become entitled to the suit properties. He accordingly decreed the suit declaring plaintiff's title but only to items 1 to 7 and recovery of possession thereof by her together with past profits for 2 years as also future profits to be determined in a separate proceeding under Order XX Rule 12 C. P. C. He gave a direction that the plaintiff will be entitled to recover possession of the suit properties only after the 1st defendant's claim for maintenance is determined. The suit in so far as it relates to item 8 and defendants 2 and 3 has been dismissed in view of the compromise concluded between the plaintiff and defendants 2 and 3. The correctness of the decree granting the reliefs referred to above to the plaintiff in respect of items 1 to 7 is sought to be questioned in this appeal preferred by the 1st defendant as, according to her the court below ought to have dismissed the suit in to in view of the categorical admissions made by the plaintiff's own witnesses that Ananthamma, the widow of the last male holder, is alive, as she is entitled to succeed to his properties in preference to the plaintiff, being a class I heir. It is on the other hand argued for the respondent that it is not open to the appellant to question her right to succeed to the properties of her brother for the reason that the last male holder's widow, Ananthamma, is found to be alive as no such plea was raised in the written statement filed by her and also because Anthamma has since remarried and has consequently forfeited her right to succeed to and hold the properties of her husband.
(3.)It is for the plaintiff, who seeks to recover possession of the properties of late Raj Reddy after getting her title thereto declared to establish not only that she is the nearest heir of the last male holder but that there are also no nearer heirs to him. But when her own witnesses stated in unmistakable terms that Ananthamma is alive and when she is indisputably a nearer heir than the plaintiff being the widow of Raj Reddy, it has to be said that the plaintiff's claims, based on the allegation that she is the only and nearest heir of the last male holder is untenable, It is true that no specific plea to this effect was raised by the appellant in her written statement but this is of no consequence when it is an admitted fact that Ananthamma is alive. As already stated, it is for the plaintiff to allege and prove that she is the nearest heir of the last male holder and that there are no nearer heirs entitled to succeed to his estate, if she wants to succeed to his properties.

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