Suit for partition - Adoption - Ex .B1 Reg. Adoption Deed executed prior to commencement of Hindu Adoptions & Maintenance Act - His rights - Burden of proof - Evidentiary value - their lordships of A.P.HIGH COURT held that Ex.B-1 document further speaks the natural father of the minor boy Rosanna, by name Pullayya was no other than brother of her husband Rangappa and it further speaks out of two sons of said Pullayya, this minor boy Rosanna was the eldest. Leave apart, whether eldest son was to be given in adoption or not, she refers in the document executed in her favour by styling as an adoption as in future for the obsequies to her and to her husband a male child is required to adopt thereby with the consent of their husband as per Hindu Law she adopted the boy as her adopted son. Thereby from then this minor boy Rosanna as if her naturally born son, (naa owrasa putruni vale) her entire property to mean what the property succeeded from her parents (movable and immovable) this minor boy Rosanna will enjoy with absolute rights and perform to her and to her husband the obsequies in future. Hence, this deed of adoption (Dattu Sweekaara Dastaveju). In fact her property which she succeeded from her parents shall not form part of coparcenary property of her husband and the adopted son, even the adoption is valid, unless she conveys by transfer of her title by proper document over the property to the so called adopted son, by simply any reference therein. If at all there is any expression of intention it was not a transfer of any right in presendi, for not even a gift or settlement nor it conveys any meaning to say an ante adoption agreement. It speaks the intention to take the property and perform to her and her husband the obsequies in future. If that is the case, it is virtually a bequeath to take effect after her life time for the future enjoyment and the future performance of the obligations of obsequies etc. It is nowhere speaks to whom she executed the document even, but for by referring to herself in the initial lines while commencing writing of the document by referring as adopted mother. It is not even the fact if at all that he was already taken in adoption much less by her husband but for by referring this is the document for adoption.
There is totally nothing about her husband was taking the child in adoption. There is nothing to say, when her husband was alive, under what right she was taken the child in adoption. There is nothing even to say the adopted parents of the boy given the child in adoption. It is not out of context to mention from the material placed on record that said Narayanamma who executed the document Ex.B-1 in her favour being wife of Rangappa stated got the properties from her parents and it is not even for her husband's properties to succeed or to have any right by birth.
Her husband was not even one of the attestors to the document so called adoption document.
It is thus invalid which creates no right to claim as adopted son and even no transfer of rights over her property or putting in possession thereunder the minor boy i.e., the 1st defendant appellant herein.=
Powers of Appellant courts
Apex Court
including Koksingh V. Deokabai6; Gaisi Ram V. Ramji Lal7 and Madan Lal (supra),
that the 1st appellate court is competent to grant relief if finds appropriate
on any facts though that was not granted by the trial Court in rendering
complete justice and prevent to the extent possible scope for further litigation
and to give finality to the lis. It is in spite of non-filing of appeal or
cross-objections with any specific plea, for granting such relief it is within
the power of the appellate Court, subject to the rider that it cannot grant more
relief than what was granted by the trial Court for want of cross-objections
Ranjan Prakash V. Divisional Manager8 and Banarsi (supra).
Not specifically pleaded - Non- framing of issue - Not specifically prayed for alternative relief - still the court can grant relief if evidence is adduced in consciousness =
In Ram
Sarup Gupta Vs. Bishur Narain Inter College10 referring to the constitution
Bench expression in Bhagwati Prasad V.Chandramaul11 and Sheodhari Rai V. Suraj
Prasad Singh12 Trojan and Company V. R M N N Nagappa Chettiar13 that the
pleadings should receive a liberal and not pedantic approach as meant to
ascertain the substance and not form, it only requires the opposite party to
know. Though generally no plea, no evidence can be looked into and for no issue,
no finding can be given; it is not always the static principle from the fact
that even a plea not made specifically from deficiency in pleadings, but if
covered by implication and evidence let in and parties know the case, it can be
looked into and even to give finding no issue framed is of no bar to formulate a
point and decide. Burden of proof in such matters, pales significance as what is
necessary is party shall aware of the plea and let in evidence for the Court to
give finding from the hearing covering the lis but not outside the scope. It
was also held therein that even alternative remedy not pleaded if entitled,
Court can grant it where it is appropriate to do so.
Whether the adoption deed is valid excuted prior to Adoptions and Maintenance Act
Ex.B-1 document further speaks the natural father of the minor boy Rosanna, by
name Pullayya was no other than brother of her husband Rangappa and it further
speaks out of two sons of said Pullayya, this minor boy Rosanna was the eldest.
Leave apart, whether eldest son was to be given in adoption or not, she refers
in the document executed in her favour by styling as an adoption as in future
for the obsequies to her and to her husband a male child is required to adopt
thereby with the consent of their husband as per Hindu Law she adopted the boy
as her adopted son.
Thereby from then this minor boy Rosanna as if her
naturally born son, (naa owrasa putruni vale) her entire property to mean what
the property succeeded from her parents (movable and immovable) this minor boy
Rosanna will enjoy with absolute rights and perform to her and to her husband
the obsequies in future. Hence, this deed of adoption (Dattu Sweekaara
Dastaveju).
In fact her property which she succeeded from her parents shall not
form part of coparcenary property of her husband and the adopted son, even the
adoption is valid, unless she conveys by transfer of her title by proper
document over the property to the so called adopted son, by simply any reference
therein.
If at all there is any expression of intention it was not a transfer
of any right in presendi, for not even a gift or settlement nor it conveys any
meaning to say an ante adoption agreement.
It speaks the intention to take the
property and perform to her and her husband the obsequies in future. If that is
the case, it is virtually a bequeath to take effect after her life time for the
future enjoyment and the future performance of the obligations of obsequies etc.
It is nowhere speaks to whom she executed the document even, but for by
referring to herself in the initial lines while commencing writing of the
document by referring as adopted mother.
It is not even the fact if at all that
he was already taken in adoption muchless by her husband but for by referring
this is the document for adoption.
There is totally nothing about her husband
was taking the child in adoption.
There is nothing to say, when her husband was
alive, under what right she was taken the child in adoption.
There is nothing
even to say the adopted parents of the boy given the child in adoption.
It is
not out of context to mention from the material placed on record that said
Narayanamma who executed the document Ex.B-1 in her favour being wife of
Rangappa stated got the properties from her parents and it is not even for her
husband's properties to succeed or to have any right by birth.
Her husband was
not even one of the attestors to the document so called adoption document.
It
is thus invalid which creates no right to claim as adopted son and even no
transfer of rights over her property or putting in possession thereunder the
minor boy i.e., the 1st defendant appellant herein.
Ascertainment quantum of mesne profits
When the
adangals that can be taken as basis for respondents are the best persons in
possession to speak otherwise by producing any accounts with them of the actual
yield and from what it was sold and net income, which they failed to produce and
from the basis of revenue record showing the estimated yield and the
cultivation, for this Court while sitting in revision, there is no illegality or
irregularity in said impugned order, muchless to reduce either the quantum
arrived or rate of interest.
2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11048
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
APPEAL SUIT No.267 of 1995 and batch
20-03-2014
Kakarla Rosenna and others ....Appellants
Thammineni Narasappa and others.... Respondents
#Kakarla Rosenna....Petitioner
$T.Narasappa and others.... Respondents
Counsel for the Appellants : Sri V.Ravinder Rao & Sri O.Manoher Reddy
Counsel for the Respondents: Sri R.Subba Rao
<Gist :
>Head Note:
? Cases referred:
1. AIR 2003 SC 1989
2. AIR 1963 SC 1516
3. AIR-2001-SC-965
4. (2003(5)-SCC-89)
5. 1975(1)SCC 212
6. AIR-1976-SC-634
7. AIR-1969-SC-1144
8. 2011(8) SCALE 240
9. AIR 1989 SC 193
10. AIR 1987 SC 1242
11. AIR 1966 SC 735,
12. AIR 1954 SC 458
13. AIR 1953 SC 235
14. AIR 1995 SC 167
15. AIR 1988 SC 719(B)
16. 1991 (3) SCC 331
17. 1998(5)-ALD-349
18. 2003(8)-Supreme Today-194 at 196
19. (2009) 3 SCC 287
20. AIR 1984 SC 664
21. (1994) 5 SCC 167
22. 1911 ( 35) Bombay-169
23. 1915(39) Bombay 441
24. AIR 1951 PC 7
25. AIR 1963 SC 185 at 193
26. 1870 (7) Bombay HCAC 153
27. 1869 (12) MIA 350
28. 1909 (36) Cal 824
29. AIR 1961 SC 1302
30. 1906 (28) All. 377
31. AIR 1926 PC 1927
32. AIR 1970 SC 1673
33. 1868(4) MHCR 169 Contd...
34. 1881 (6) Cal. 381
35. AIR 1937 Bombay 169
36. AIR 1939 PC 152
37. AIR 1955 MB 129
38. AIR 1954 Raj. 17
39. AIR 1961 SC 1378
40. 2010(3) Scale 569
41. AIR 1956 SC 593,para 23 page 602
42. AIR 1965 SC 241 at para 17&18
43. AIR 1919 PC 162
44. 1971(1) APLJ-338
45. AIR 1959 (A.P) 360
46. ILR 1914 MADRAS 529
47. 1962(2) SCJ 472
48. 2010(3) SCALE 569
49. AIR 1956 SC 593
50. AIR 1965 (SC) 241
51. ILR 1937 Madras 529
52. (1997)2 SCC 630
53. AIR 1983 (SC) 114
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
APPEAL SUIT No. 267 OF 1995 & C.R.P.No.998 of 2002
COMMON JUDGMENT:
A.S.No.267 of 1995
1) The 1st defendant-Kakarla Rosenna among 3 plaintiffs including Narayanamma
and Ch.Narayana filed this appeal against the four plaintiffs T.Narasappa,
Ch.Narayana Swamy, Ch.Narasimhulu and Ch.Rajendra, aggrieved by the Judgment and
decree dated 23.01.1995 in O.S. No.102 of 1985 on the file of Principal
Subordinate Judge, Anantapur.
C.R.P.No.998 of 2002
1(a) Said 1st defendant in O.S.No.102 of 1985 (being the appellant in A.S.
No.267 of 1995) filed this revision aggrieved by the order in final decree
petition against him in I.A. No.467 of 1998 in O.S. No.102 of 1985 on the file
of Principal Senior Civil Judge, Anantapur.
2) Pending appeal the appellant-1st defendant of the suit Rosanna died and
his L.Rs brought on record as appellants 2 to 4 by name Rangayya, Ananda Kumar
and Vijaya Lakshmi as per orders in A.S.M.P. No.153, dated 18.06.2012 and the
plaintiff T.Narsappa who was 1st respondent to the appeal also died and his L.Rs
brought on record as respondents 7 to 11 by name Narsappa, Ranganna,
Jayanarasimhulu @ Jayanna, Pullamma and Narayanamma as per orders in
C.M.P.No.22508 of 1998 dated 18.08.1999. Said persons also brought on record
during pendency of the final decree petition in I.A. No.467 of 1998 (impugned in
the revision) i.e., the 1st plaintiff T.Narsappa's L.Rs as petitioners 5 to 7
viz., Narayana, Rangappa and Jayanarasimhulu vide orders in I.A. No.273 of 2000
dated 28.08.2000 and also C.Narasimhulu and Pullamma as respondents 4 and 5 vide
orders in I.A. No.72 of 1999 dated 08.03.1999.
3) Since both the matters are interrelated and come out of one and the same
dispute between the parties, both matters are clubbed together and the parties
are being referred to as were arrayed before the trial Court in the original
suit for the sake of convenience.
4) The suit was filed by plaintiffs 1 to 4 seeking partition and separate
possession of the plaintiffs' 5/8th share in the plaint schedule properties by
metes and bounds and for mesne profits for three years prior to suit and
thereafter till the date of possession of their share against the 1st defendant.
The brief averments in the plaintiffs' case are as follows:
4(a) The schedule mentioned property originally belongs to Balappa, who got
married Mangamma, had one son (Chandrappa) and two daughters (Pullamma and
Narayanamma). Balappa died in or around 1920 and after 8 years his son
Chandrappa died unmarried and the schedule mentioned properties devolved on
widow Mangamma, who also died subsequently. Consequent upon the death of
Mangamma, her daughter, sole heir, Narayanamma was the absolute owner of the
property as the other daughter Pullamma also died during the life time of
Mangamma.
(b) Narayanamma, sole heir of Balappa, entered into possession of the
properties. On 15.06.1959 said Narayanamma executed a gift (Ex.A-7) of half
share in favour of Aswarthappa (father of plaintiffs 2 to 4 & 2nd defendant) and
defendants 1 & 3 jointly to be enjoyed by the three branches. The other half
share in the schedule mentioned property, Narayanamma, gifted in favour of the
1st plaintiff reserving her right to enjoy the same during her life time with
limited interest under the gift deed dated 13.04.1973(Ex.A-1). Narayanamma also
executed a lease deed in favour of the 1st plaintiff permitting him to cultivate
the lands. Subsequently Narayanamma also died. Consequent to the death of
Narayanamma, 1st plaintiff became entitled to half share, plaintiffs 2 to 4 and
2nd defendant together are entitled 1/6th share and defendants 1 and 3 each
became entitled to 1/6th share in the schedule properties.
(c) When disputes arose between the parties, during the life time of
Narayanamma, the 1st plaintiff and Narayanamma, filed a suit in O.S. No.274 of
1973 (Ex.B-15-plaint) on the file of District Munsif, Gooty for permanent
injunction against 1st defendant and others from interfering with their
possession and enjoyment and the same was dismissed, vide its Judgment dated
23.04.1979 (Ex.B-17), on the ground that the 1st plaintiff had not made out that
he was in possession and enjoyment of the suit properties. Aggrieved by the
same, the 1st plaintiff filed an appeal in A.S. No.119 of 1979 on the file of
District Judge, Anantapur and the same was also dismissed vide its judgment
dated 24.08.1981 holding that the adoption of the 1st defendant by Narayanamma
and illatom affiliation of Rangappa are not true and the plaintiffs had 1/6th
share in the suit properties and the defendants 1 and 3 are entitled to 1/6th
share in the property.
(d) The 1st defendant also filed O.P. No.218 of 1974 which was later numbered as
a suit in O.S. No.80 of 1977 (Ex.A-3 Plaint) on the file of Subordinate Judge,
Anantapur for declaration of his title to the plaint schedule properties and
also for possession of the properties through Court and for mesne profits and
the same was dismissed for non-prosecution by the plaintiff therein (1st
defendant herein). The 1st defendant is entitled to only 1/6th share in the
suit properties and he is not entitled to any of the properties, however, on the
ground that he had been dispossessed by virtue of an order of injunction in O.S.
No.274 of 1973, he later filed I.A. No.52 of 1979 (Ex.B-19 petition) and took
possession of the same by order dated 05.05.1979 and delivery was recorded on
09.05.1979. Though the 1st plaintiff filed a petition for restitution of
possession, he was not successful on that count.
5. The 1st defendant filed his written statement and the brief averments are as
follows:
5(a) After the death of Balappa, Mangamma took Rangappa as her illatom son-in-
law, by giving him in marriage with Narayanamma, agreeing to give him half a
share in the properties as per custom and usage prevailing in their community
and Rangappa had been living with his wife in his father-in-law's house at
Chayapuram and became the joint owner of the properties along with his wife
Narayanamma. After the death of Mangamma, Narayanamma and Rangappa entered into
the properties as joint owners and adopted the 1st defendant on 13.11.1942
(Ex.B-1) under a registered deed. Since the date of adoption, the 1st defendant
also became a joint owner of the properties along with his parents. Therefore,
after the adoption Narayanamma was not the sole and absolute owner of the
properties and hence she has no right to execute any gift deed and the said gift
deed as stated by the plaintiffs will not confer any rights to the donees and
the gift is valid only to the extent of Narayanamma's share, and even on the
date of the alleged gift deed, said Narayanamma is mentally weak for more than
75 years old and not capable of taking care of herself, that taking advantage of
the same, 1st plaintiff seems to have played fraud on her and might have
obtained the alleged gift deed, which is not valid and enforceable in law.
(b) The suit lands were never in possession and enjoyment of the plaintiffs 2 to
4 or defendants 2 and 3. After the death of Narayanamma, the 1st defendant was
in joint possession and enjoyment of suit properties, became the sole and
absolute owner of the same. The plaintiffs with an intention to grab the
properties, started some disputes by filing a suit in O.S. No.274 of 1973 and
upon the dismissal, filed an appeal in A.S. No.119 of 1977, which was also
dismissed. After filing the suit in O.S. No.274 of 1973, they have obtained an
interim injunction order with which they tried to interfere with the rightful
possession and enjoyment of the 1st defendant. Under those circumstances, the
1st defendant filed O.S.No.80 of 1977 on the file of Sub-Court, Anantapur and as
the injunction was vacated in the previous suit O.S. No.274 of 1973 as it was
dismissed, the 1st defendant did not prosecute the same.
(c) After the death of Narayanamma and Rangappa being the adopted son and sole
and absolute owner of the suit properties, the 1st defendant having possession
and enjoyment of the same, paying land revenue also and no one else paying the
same and hence, neither the plaintiffs nor the other defendants have any right,
title or interest in the suit properties. He got a half share being an adopted
son and on the other half, he got it by inheritance on the death of Rangappa and
Narayanamma.
(d) Since the plaintiffs themselves admitted regarding the prior suit, under
which it has been held that the 1st defendant is in physical possession of the
suit properties in his own right and that the plaintiffs are not in possession
of the same, they cannot be deemed to be in joint possession of the suit
properties and since they did not file said suit for possession or for
partition, but for injunction, this suit is barred under Order II Rule 2 C.P.C.
(d) As far as the mesne profits are concerned, when the 1st defendant was never
in wrongful possession of the suit properties and when the 1st defendant is
enjoying as a rightful owner, that question does not arise. The defendants 2 and
3 are colluding with the plaintiffs and the suit is liable to be dismissed.
6. Basing on the pleadings of both the parties, the trial Court framed the
following issues:-
i. Whether the plaintiffs are entitled for partition and separate possession of
their due share as claimed
Additional issues:
ii. Whether the gift deed dated 13.04.1973 executed by Narayanamma in favour of
the 1st plaintiff is true
iii. Whether the gift deed dated 15.06.1959 executed by Narayanamma in favour of
Aswarthappa, the 1st defendant and 3rd defendant is true
iv. Whether said gift deeds are vitiated by fraud as mentioned by 1st defendant
in para-4 of the written statement
v. Whether Rangappa was the illatom son-in-law of Mangamma as contended by the
1st defendant
vi. Whether the adoption set up by the 1st defendant to Rangappa and Narayanamma
is true, valid and binding on the plaintiffs
vii. Whether Narayanamma was not entitled to all the properties but was entitled
to only a share as contended by the 1st defendant in para 3 of the written
statement
viii. Whether the plaintiffs are entitled to mesne profits
ix. To what relief
7. During the course of trial, the plaintiff as P.Ws-1 and another witness as
P.W-2 were examined on behalf of the plaintiff and marked Exs.A-1 to A-14.
Ex.A-1 is the registration extract of gift deed dated 13.04.1973 executed by
Narayanamma in favour of the 1st plaintiff, Ex.A-2 is the copy of Judgment in
A.S. No.119 of 1979 which was dismissed, Ex.A-3 to A-6 are the copies of plaint,
written statement, judgment and decree respectively in O.S. No.80 of 1977, Ex.A-
7 is the registration extract of gift deed dated 15.06.1959 executed by
Narayanamma in favour of Aswarthappa and others, Exs.A-8 to A-14 are the
relevant portions in the evidence of various witnesses including the 1st
defendant during the course of trial in O.S. No.274 of 1973. On behalf of
defendants the 1st defendant as D.W-1 and another witness as D.W-2 were examined
and marked Exs.B-1 to B-22. Ex.B-1 is registered document dated 13.11.1942
executed by Narayanamma in favour of the 1st defendant, Ex.B-2 is Lagnapatrika
of the 1st defendant, Exs.B-3 to B-10 are the tax receipts, Ex.B-11 is the
transfer of patta, Exs.B-12 to B-14 are the verification report given by the
verification officer of land ceiling tribunal, Anantapur; order passed by
L.R.Tribunal and notice of the L.R.Tribunal respectively. Exs.B-15 to B-19 are
copies of plaint, written statement, judgment and decree respectively in O.S.
No.274 of 1973, Ex.B-20 is the publication in Andhra Prabha dated 05.06.1973,
Ex.B-21 is copy of Judgment of High Court of A.P and Ex.B-22 is the relevant
portion marked in Ex.B-16.
8. After considering the entire evidence of witnesses, documents exhibited by
both parties and after hearing both sides, learned Principal Subordinate Judge,
Anantapur passed preliminary decree on 23.01.1994 holding that the 1st plaintiff
is entitled for 1/24th share, plaintiffs 2 to 4 are entitled for 1/24th each,
1st defendant and 3rd defendant are each entitled for 4/24th share and 2nd
defendant is entitled for 1/24th share in the plaint schedule properties and
also held that the plaintiffs are entitled for mesne profits in respect of their
share in the plaint schedule properties.
9. Aggrieved by the same, the 1st defendant, filed the present appeal contending
that the decree of partition in favour of the plaintiffs' is contrary to law,
weight of evidence and the trial Court having held the appellant has been
validly adopted by Narayanamma by establishing the same vide Ex.B-1 registered
deed, which was also attested by Rangappa, ought to have dismissed the suit as
the 1st defendant is entitled to all the properties as the absolute owner and
the 1st defendant is in continuous possession and enjoyment of all the suit
properties since 13.11.1942 for which mutation in the revenue records has also
been done in his favour. The 1st defendant further contends that the trial
Court ought to have held that Exs.A-1 and A-7 should be invalid as Narayanamma
herself given up her rights in all the suit properties under Ex.B-1 and no
records establishes possession of Narayanamma at any point of time. The 1st
defendant further impugning that merely because no direct evidence after the
lapse of over 75 years could be produced, it does not mean that the plea of 1st
defendant as regards the illatom of Rangappa and Mangamma cannot be believed and
prayed to allow the appeal by setting aside the decree and Judgment dated
23.01.1994 passed in O.S. No.102 of 1985 on the file of Principal Subordinate
Judge, Anantapur.
10. After passing of the decree, pending the appeal, the plaintiffs filed I.A.
No.467 of 1998 in O.S. No.102 of 1985 under Order XX Rule 18 C.P.C seeking a
final decree by appointing a commissioner for demarcation of the schedule
properties in terms of the preliminary decree and for assessment of the mesne
profits of the schedule properties and when the respondents reported no counter,
the learned Principal Senior Civil Judge appointed an Advocate-Commissioner for
demarcation in terms of the preliminary decree for assessment of the mesne
profits and learned Advocate-Commissioner filed his report. Basing on the
report and after considering the entire material on record, the learned
Principal Senior Civil Judge allowed the petition on 13.04.2001 in I.A.No.467 of
1998 in O.S. No.102 of 1985 holding that the legal representatives of the 1st
petitioner are entitled for mesne profits of Rs.3,60,660/- towards their 12/24th
share, petitioners 2 to 4 are entitled to Rs.30,055/- each for their 1/24th
share and the 3rd respondent is entitled to Rs.1,20,220/- towards his 4/24th
share i.e., 1/6th share. The learned Judge further held that the petitioners
are also entitled to 6% interest from the date of the order till the date of
realization over the respective amounts to which they are entitled.
11) Aggrieved by the same, the petitioner-1st defendant, filed C.R.P.No. 998 of
2002 impugning the ascertaining of mesne profits as illegal, improper and unjust
by exceeding jurisdiction, that even the learned Advocate Commissioner had made
a personal inspection and had arrived at Rs.1,64,000/- and odd towards mesne
profits and the learned Judge has absolutely no basis to arrive at the figure of
Rs.7,21,000/- and odd; that the learned Judge ought to have observed that the
entire Anantapur District has been drought hit since over a decade and there has
been absolutely no crop on many lands in the district and the Learned Judge
ought to have seen and follow the report of the Commissioner regarding the
wasteful plants filled upon many lands and prayed to allow the revision by
setting aside the decree and order dated 13.04.2001 passed in I.A. No.467 of
1998 in O.S. No.102 of 1985 on the file of Principal Senior Civil Judge,
Anantapur.
12. During the course of this appeal the sole appellant died and legal
representatives of the appellant-1st defendant were brought on record as
appellants 2 to 4 as per order dated 20.06.2013 in A.S.M.P.No.153 of 2013. The
1st respondent-1st plaintiff also died and legal representatives of the 1st
respondent also brought on record as respondents 7 to 11 vide orders dated
18.08.1999 in C.M.P.No.22508 of 1998.
13. Heard both sides and perused the material on record. In the course of
hearing the appeal, the learned counsel for the appellants reiterated above
contentions in seeking to set aside the trial Court's decree and judgment by
dismissal of the suit claim. Whereas it is the contention of the counsel
representing the respondents that the appeal claim is speculative and baseless
in order to trouble them further, that the trial Court after discussion of the
entire evidence on record by proper appreciation of fact and law came to the
right and reasoned conclusion but for finding on alleged adoption which they can
assail and but for that, for this Court while sitting in appeal, there is
nothing more to interfere, hence, to dismiss the appeal.
14. Now the points that arise for consideration in the appeal are:
1. Whether the 1st plaintiff for half share and the remaining plaintiffs 2 to 4
along with 2nd defendant for 1/6th respectively to the claim of 5/8th share for
remaining said to be entitled by defendants 1 and 3 each 1/6th out of plaint
schedule, entitled to partition with separate possession based on Ex.A-1 to A-7
settlement deeds respectively executed by Narayanamma for the plaint schedule
properties respectively as its owner with possession and enjoyment by creating
right and reserving life interest possession and enjoyment
2. Whether plaintiffs are not entitled to partition and possession of any extent
over the plaint schedule properties from the claim by 1st defendant as adopted
son of Narayanamma and her husband Rangappa ( so called illatum son-in-law of
Mangamma widow of Balappa under caste custom in vogue) under Ex.B-1 adoption
deed and with claim Narayanamma also divested her right over the plaint schedule
properties thereunder and otherwise also from the claim of the 1st defendant
perfected title by adverse possession
3. Whether the trial Court's decree and judgment granting relief of partition
with separate possession and profits is unsustainable and requires interference
by this Court while sitting in appeal and if so to what extent including on the
quantum of profits arrived by the trial Court in the final decree proceedings
impugned in the C.R.P. No.998 of 2002
4. To what result
15. As the points 1 to 3 are interrelated, to avoid repetition of evidence point
wise and for sake of convenience all the points are taken up together to decide
commonly.
16. Before coming to decide the above points 1 to 3 for consideration, it is apt
to state the settled position of law in dealing with appreciation of the
evidence by the appellate Courts and powers of the appellate Court that:
16(a) As per Banarsi Vs.Ramphal1 and Pannalal V. State of Bombay2 (5 judges
bench), the 1st appellate Court must re-appreciate (appreciate afresh) the
entire evidence in giving its findings supported by reasons as to decide the lis
and therefrom to find how far the decision of the trial court on any of its
findings and conclusions are correct or incorrect, including for confirmation or
reversal of said findings of the trial Court and the appellate Court for that
is conferred with powers of width amplitude under Order XLI Rule 22,24 and 33 so
as to do complete justice between the parties and such power is unfettered to
make whatever order it thinks fit, even between co-respondents, for ordinarily
cross-objections between co-respondents they do not prefer. It is also as per
Santosh Hazari V. Purushottam Tiwari3 and Madan Lal V. Yoga Bai4, and Harihar
Prasad Singh V. Balmiki Prasad Singh5, that in Civil appeals, particularly in
first appeal, the appreciation of evidence is at large like appreciation of
evidence in a suit, more particularly from Order XLI, Rule 33 and 24 C.P.C. No
doubt, the burden of showing that the judgment or even a finding therein under a
challenge in appeal is wrong or incorrect either wholly or in part lies on the
appellant and same is also the proposition in the course of the cross-objections
as the cross-objectors are at par with appellants so far as their contentions in
the cross-objections concerned, in the course of the cross-objections in
shifting the burden on them, from hearing the main appeal. Coming to the powers
of the 1st appellate Court in this regard concerned, more particularly from
Order XLI, Rule 33 and 24 C.P.C. and from several expressions of the Apex Court
including Koksingh V. Deokabai6; Gaisi Ram V. Ramji Lal7 and Madan Lal (supra),
that the 1st appellate court is competent to grant relief if finds appropriate
on any facts though that was not granted by the trial Court in rendering
complete justice and prevent to the extent possible scope for further litigation
and to give finality to the lis. It is in spite of non-filing of appeal or
cross-objections with any specific plea, for granting such relief it is within
the power of the appellate Court, subject to the rider that it cannot grant more
relief than what was granted by the trial Court for want of cross-objections
Ranjan Prakash V. Divisional Manager8 and Banarsi (supra). It is needless to
say the 1st appellate Court desires to reverse the judgment and decree of lower
Court, it should discuss the findings and set aside those which are
unsustainable either on fact or on law.
16(b) It is also the well-settled proposition of law from S.B. Noronal V. Prem
Kundi9 that, pleadings are not statutes and legalism is not verbatim. Common
sense should not be kept in cold storage, when pleadings are construed. In Ram
Sarup Gupta Vs. Bishur Narain Inter College10 referring to the constitution
Bench expression in Bhagwati Prasad V.Chandramaul11 and Sheodhari Rai V. Suraj
Prasad Singh12 Trojan and Company V. R M N N Nagappa Chettiar13 that the
pleadings should receive a liberal and not pedantic approach as meant to
ascertain the substance and not form, it only requires the opposite party to
know. Though generally no plea, no evidence can be looked into and for no issue,
no finding can be given; it is not always the static principle from the fact
that even a plea not made specifically from deficiency in pleadings, but if
covered by implication and evidence let in and parties know the case, it can be
looked into and even to give finding no issue framed is of no bar to formulate a
point and decide. Burden of proof in such matters, pales significance as what is
necessary is party shall aware of the plea and let in evidence for the Court to
give finding from the hearing covering the lis but not outside the scope. It
was also held therein that even alternative remedy not pleaded if entitled,
Court can grant it where it is appropriate to do so. In Balasankar Vs. Charity
Commissioner, Gujarat14 at para-19-it was held that, burden of proof pales
significance when both parties adduced evidence and it is the duty of the court
to appreciate the entire evidence adduced by both sides in deciding the lis;
also on the aspect as to party proved in possession of best evidence is bound to
produce the same to throw light on the lis and to unfold any truth and thereby
cannot take shelter on the abstract doctrine of burden of proof saying burden
not on him to prove by filing the same, as laid down in NIC vs. Jugal Kishore15,
and in Lakhan Sao Vs. Dharam Chowdhary16.
16(c) It was also laid down in this regard that, the appreciation of evidence is
no doubt from experience and knowledge of human affairs depending upon facts and
circumstances of each case and regard had to the credibility of the witness,
probative value of the documents, lapse of time if any in proof of the events
and occurrence for drawing inferences, from consistency to the material on
record to draw wherever required the necessary inferences and conclusions from
the broad probabilities preponderance from the over all view of entire case to
judge as to any fact is proved or not proved or disproved. Coming to the proof
of facts out of the facts in issue to the extent of relevant facts concerned,
the above expression discussed what is meant by proved, not proved or disproved
with reference to Section 3 of the Evidence Act. In N.K.Somani Vs., Punam
Somani17, also the scope as to what is the difference between proved, not proved
and disproved was discussed.
16(d) In RVEE Gounder Vs., RVS Temple18 case at paras 25 & 26, the Apex Court
discussed that, in civil cases the proof is by preponderance of probabilities
for including in suits relating to ejectment or declaration of title or for
possession; and the onus shifts from initial burden on the plaintiffs if able to
establish from preponderance of probabilities for entitlement, on the defendant
to rebut the same including with specific claim on their part if any. It is in
explaining the earlier propositions of law that, in a suit for ejectment,
plaintiff shall win or lose his case only on his own strength principle, since
it does not mean the onus of proof is static and always on the plaintiff or it
shall never shifts on the defendant even if the plaintiff is able to establish
his case from preponderance of the probability as to what is meant by proved,
not proved or disproved required for the above expressions with reference to
Section 3 of Evidence Act without going into the other components of "may
presume, shall presume and conclusive proof", from the very definition, proved
and disproved to say not proved is when it is neither proved nor disproved. It
requires considering the matters before the Court on any fact for either
believes it to exist or does not exist (which is by direct evidence), or
considers its existence so probable that a prudent man ought, under the
circumstance of a particular case to act upon supposition that it exists or it
does not exist( which is by circumstantial evidence). At para-25 of the
judgment, the Apex Court clearly held that in a suit for ejectment once
plaintiff has been able to create a high degree of probability so as to shift
the onus on the defendant, it is for the defendant to discharge his onus and in
the absence there of, the burden of proof lies on the plaintiff shall be held to
have been discharged so as to prove the plaintiff's title.
16(e) Coming to the law on interpretation of deeds and documents in i). Narendra
Gopal Vs. Rajat Vidhyardhi19 para-32 (cl.3) it was held that, in appreciating
the documents of unilateral dispositions and testamentary dispositions(wills),
the true intention of the testator (executant) has to be gathered, not by
attaching importance to isolated expressions but by reading the document as a
whole. The intention of the testator must be ascertained not only from the
words used but also from surrounding circumstances. The court will put itself in
the armchair of the executant/testator. (ii). In V.S.Talwar Vs. Premchandra20 at
para-7 it was held that in construing instruments court must have regard not
only to the presumed intention of the parties but also to the meaning of the
words which they have used. (iii). In Hind Plastics Vs. Collector of Customs21
at para-17 it was held that, every instrument has to be so interpreted as to
accord with the intention of its maker having regard to the language used.
Though one cannot ignore actual words used and go after the supposed intention
of maker, since that would amount to entering the arena of speculation, but all
the same said principle is unexceptionable.
16(f) It is also just to have a glimpse on the Hindu Un-codified Law relating to
adoption as on the date of adoption, which was prior to Hindu Adoption
Maintenance Act, 1956 came into force.
As per Mulla on Principles of Hindu Law, 20th Edition (Lexis Nexis Butterworth
Wadhwa, Nagapur revised by S.A.Desai, Volume-I (2006-2007) chapter 23 from pages
771 to 848 at page 772 para 444, the objects of adoption are stated of two
fold:- Firstly of religious, to secure spiritual benefit to the adopter and to
his ancestors by having a a son for the purpose of offering funereal cakes and
libations of waters to the soul of adopter and his ancestors. The second is
secular, to secure an heir and perpetuate the adopter's name.
By referring to Sitaram V. Harihar22, Balagangadhar Tilak V. Srinivas23 and
subsequent expression of the privy council24 the Supreme Court in Chandra Sekhar
V. Kulandaivelu25 observed that the validity of the adoption is to be determined
by spiritually rather than temporal considerations and that devolution of
property is only of secondary importance. In Sitaram (supra), it was observed
that when a Hindu gives a boy in adoption, his act be according to the Hindu
Sastras, in the nature of sacred gift voluntarily made and as per Manu that to
be confirmed by pouring water and it is at par with performing a daughter's
marriage by Kanyadan as both are gifts for religious and secular purposes. In
para 445 of Mulla supra, page 773 the requirements of valid adoption stated that
no adoption is valid unless the person adopted is capable for taking in adoption
and the person giving in adoption is capable in giving adoption and the person
adopts is capable to taken in adoption and the adoption is to be completed by
actually giving and taking irrespective of the ceremony called Datta Homam
performance is essential for validity of adoption or not. In para 446 of Mulla
supra, pages 773 and 774 it was observed that, every male may adopt if he is
competent and a wife also can adopt to her husband. However, a wife cannot
adopt a male without having an express consent from her husband it was by
referring to expression in Narayan V. Nana26 saying it is only after death of
the husband the wife may adopt in certain parts of India, only if he has
expressly authorized her to adopt and in other parts even without such
authority. However, in no case can a wife or a widow adopt a son to herself,
the adoption must be made to her husband otherwise invalid and it confers no
legal rights upon person adopted vide decision Chowdary Pudan Singh V. Koer
Oodey Singh27 and Narendra V. Dina Nath28. The Supreme Court by referring to
the same in Kasturi V. Ponnammal29 held that if the adoption made by husband in
his life time, his wife would join him and being known as adopted mother.
However, by that it is not an adoption by the wife to herself but the adoption
is to the husband. Therefrom a Hindu may adopt or deligate a power to adopt to
his wife in writing in his life time for her to adopt after him.
17. From the above principles of law laid down in the expressions, coming to the
decision on the facts in dispute covered by the points 1 to 3 for consideration,
17(a) The so called adoption dated 13.11.1942 covered by Ex.B-1 document is in
dispute. The recital speaks that the person to be adopted by name Rosanna was
the natural son of one Kakarla Pullanna @ Pullayya of the village Chayapuram and
the person that was taken in adoption by referring as Dattutalli since minor
represented by her as Kakarla Narayanamma, W/o.Rangappa of the same village and
the document referred as adoption deed speaks that it is she Kakarla
Narayanamma, W/o.Rangappa executed the document as adoption deed only in her
favour. It is not even a document executed by natural parents to the adopted
parents or even otherwise by referring therein any giving and taking of the boy
in proof of the factum of adoption. It is practically a unilateral document
which is not contemplated for an adoption deed. Apart from it, the contents
speak that she was by then aged only 45 years and there is nothing to say her
husband was by then no more or she was a widow by then and if so she was
authorized by her husband in his life time to enable her to adopt by anything in
writing. She speaks her husband was by then even alive there and for they have
no issues she has choosen to adopt. In fact Ex.A-1 gift deed dated 13.04.1973
executed by her speaks that husband of Narayanamma only died in the year 1972.
Ex.B-1 document further speaks the natural father of the minor boy Rosanna, by
name Pullayya was no other than brother of her husband Rangappa and it further
speaks out of two sons of said Pullayya, this minor boy Rosanna was the eldest.
Leave apart, whether eldest son was to be given in adoption or not, she refers
in the document executed in her favour by styling as an adoption as in future
for the obsequies to her and to her husband a male child is required to adopt
thereby with the consent of their husband as per Hindu Law she adopted the boy
as her adopted son. Thereby from then this minor boy Rosanna as if her
naturally born son, (naa owrasa putruni vale) her entire property to mean what
the property succeeded from her parents (movable and immovable) this minor boy
Rosanna will enjoy with absolute rights and perform to her and to her husband
the obsequies in future. Hence, this deed of adoption (Dattu Sweekaara
Dastaveju). In fact her property which she succeeded from her parents shall not
form part of coparcenary property of her husband and the adopted son, even the
adoption is valid, unless she conveys by transfer of her title by proper
document over the property to the so called adopted son, by simply any reference
therein. If at all there is any expression of intention it was not a transfer
of any right in presendi, for not even a gift or settlement nor it conveys any
meaning to say an ante adoption agreement. It speaks the intention to take the
property and perform to her and her husband the obsequies in future. If that is
the case, it is virtually a bequeath to take effect after her life time for the
future enjoyment and the future performance of the obligations of obsequies etc.
It is nowhere speaks to whom she executed the document even, but for by
referring to herself in the initial lines while commencing writing of the
document by referring as adopted mother. It is not even the fact if at all that
he was already taken in adoption muchless by her husband but for by referring
this is the document for adoption. There is totally nothing about her husband
was taking the child in adoption. There is nothing to say, when her husband was
alive, under what right she was taken the child in adoption. There is nothing
even to say the adopted parents of the boy given the child in adoption. It is
not out of context to mention from the material placed on record that said
Narayanamma who executed the document Ex.B-1 in her favour being wife of
Rangappa stated got the properties from her parents and it is not even for her
husband's properties to succeed or to have any right by birth. Her husband was
not even one of the attestors to the document so called adoption document. It
is thus invalid which creates no right to claim as adopted son and even no
transfer of rights over her property or putting in possession thereunder the
minor boy i.e., the 1st defendant appellant herein.
17(b) Narayanamma being the owner of the properties and there is nothing even to
say her husband was taken as illatum son-in-law, muchless as per any custom to
so say prevailing, muchless he was given any right in the property or as joint
owner thereunder with others or thereby the so called son to be adopted will get
any right thereunder muchless by birth by treating as coparcenary property, even
to give any credence to the contention of the 1st defendant. Narayanamma while
so enjoying as absolute owner she gifted the properties. A perusal of Ex.A-1
registered gift deed executed by said Narayanamma in favour of the 1st plaintiff
referring that her husband died intestate left behind her 7 months before
execution of Ex.A-1 deed dated 13.04.1973 (to say the husband of Narayanamma
only died in the year 1972) and was alive by the time of so called so called
Ex.B-1 adoption deed dated 13.11.1942. Once again it is to say there from that
it is an invalid document as when her husband was alive by the time of so called
Ex.B-1 adoption deed dated 13.11.1942 and as such she was not having any right
in her husband's life time to adopt, muchless even by referring with his
consent. The adoption by written consent of the husband is conferred to the
widow and not in the lifetime of the husband. When it is not even a document
executed by the natural parents of the minor boy in proof of adoption
acknowledging their giving and her taking. Without giving which is a pre-
requisite for taking, the question of taking when does not arise, can the
recital in the document gives life to the adoption muchless to say there is
giving for said recital of taking that too when it is not an acknowledgement of
a past transaction of earlier oral adoption but for from recital speaks as if it
is the deed of adoption a contemporaneous document to the alleged adoption. The
recitals in the document are also silent as to what were the ceremonies observed
for the adoption to say there was adoption. Without which, a mere recital no
way gives life muchless sanctity to say adoption. From this factual background
to the claim of adoption allegedly dated 13.11.1942 executed on the stamps
purchased in her name on that day and registered on that day. Even to say out
of the four attestors of the document, one Kakarla Ranganna, S/o.Subbanna and
the 4th one Kakarla Pullayya was the husband of Narayanamma and his brother-cum-
natural father of Rosanna was not even correlating for father's name of Pullayya
not even mentioned either at the attestor's column like for Ranganna or in the
recitals. In this regard, as per Para 448, page 776 of Mulla supra, it is
categorically stated referring to the expression in Narayana (supra) that a wife
cannot adopt a son to her husband during her husband's lifetime except with his
express consent. Here as can be seen from Ex.B-1 document there is no express
consent to said Narayanamma by her husband Rangappa to adopt said Rosanna, the
Pullayya's son. It was regarding the written authority referred supra it was
observed in para 453 of Mulla of page 780 that the authority must be in writing
and registered unless it is given under a will vide decision Mottasiddilal V.
Kundanlal30 and Ravath V. Beni Bahadur31 and if the authority is given under a
will, it must be executed in accordance with the formalities required by Section
63 of the Indian Succession Act. As per para 456 of Mulla supra pages 782 and
783 it was observed that even the husband authorized the wife in his life time
to adopt in writing, the widow who is so authorized by her husband may or may
not adopt. It is her discretion for no legal obligation thereby to adopt or not
vide decision Chandra Sekhar (supra) even she had been expressly directed to do
so by her husband in life time. Her rights to her husband's estate not in any
way affect by her omission or refusal to adopt. As per paras 458 and 459 of
Mulla supra, pages 784 to 789 of the parts of Madras State (Presidency) in
particular concerned to the place of Anantapur by then was under erstwhile
Madras composite state, a widow cannot alone adopt without authority from her
husband unless there is express permission in the life time of her husband to
adopt by her or he was separated from her before his death, subject to the
consent of the immediate Sapindas of her husband in the absence of authorization
by her husband to adopt. The decision of the Apex Court in Tahsil Naidu V.
Kulla Naidu32 by referring Chandra Sekhar (supra) speaks that the assent of
Sapindas because of supposed incapacity of a widow for independent action and
not by reason of the affect of adoption of the proprietory rights of the co-
parceners or reversionaries as property considerations are no more paramount in
the case of a undivided family than in the case of divided family. Thus, from
the above even during the life time of the husband the question of her adopting
does not arise to give any validity to the adoption even taken for arguments'
sake there was giving and taking as it is the husband alone that has to adopt at
best by joining the wife with him to adopt and not by wife by saying with any
consent of husband when he is alive. Coming to the competency of persons to
give in adoption concerned as per para 471 of Mulla page 808 the person who can
lawfully given a boy in adoption are his father and mother. Even in the Ex.B-1
deed apart from Narayanamma's husband Rangappa alive and she has no right to
adopt, the so called minor boy Rosanna allegedly adopted concerned, the mother's
name of minor boy not even referred but only his father's name as natural son of
Pullayya @ Pullanna and there is nothing even to say, parents given the boy in
adoption and therefrom the adoption was accepted by taken the boy. Therefrom it
is to say the so called adoption under Ex.B-1 is invalid under law so far as
giving and taking of the said minor boy Rosanna concerned. Under Para 447 of
Mulla supra from pages 810 to 814 regarding the person to be adopted it speaks
the person to be adopted is a male unless there is custom to adopt female and
must belong to same caste of adopting father and must not be within the
prohibited degrees of relationship in the absence of any special custom so to
establish and giving to the ceremonies of adoption as per paras 485 to 489 of
Mulla supra of pages 817 to 821, there must be a physical act of giving and
receiving with an intent to transfer the boy from one family to other family,
Datta Homam and any other minor ceremonies and of which the physical act of
giving and receiving of essentialities though not Datta Homam particularly of
the Madras area vide decision Singamma33 and other minor ceremonies and the
physical act of giving and receiving absolutely necessary to the validity of
adoption is not only of in all casts of Hindus including Sudras and the law does
not accept any substitute for the ceremony and in the absence of the ceremony
mere expression of consent or the execution of a day of adoption and it is
registered, but not accompanied by actual delivery of the boy does not operate
as valid adoption - vide decision Shoshinath V. Krishna Sundari34 valid in
several other expressions including Neeleva V. Gurshiddappa35, Biradhmal V.
Prabhavathi36, Permanand V. Laxminarain37, and Bujandas V. Nanurain38. It was
observed further that two concepts of giving and taking in adoption there should
be some overt act necessary to signify the delivery of the boy from one family
to the other though no particular form is prescribed for the ceremony when the
law requires the natural father should give the adoptive boy and adoptive parent
should receive him. The said ceremony of giving and taking irrespective of the
nature of the ceremony in proof of it, should be necessarily there vide decision
Laxman Singh V. Rupkanwar39. It is therefrom the result of adoption (subject to
proof of the essential ceremony of giving and taking by any specified overt act
necessary) the adoption has the affect of transferring the adopted from his
natural family into the adoptive family to confer on the adoptee same rights and
privileges of the family of the adopter as legitimate son but for restriction of
marriage within the prohibited degrees of relationship. From very recitals of
Ex.B-1 placed reliance on by the 1st defendant to the suit in claiming adoption
the so called adopted mother Narayanamma when her husband Rangappa was alive has
no right to adopt and there is nothing to say the so called adopted by Rosanna's
parents given the boy in adoption and the same was accepted by Rangappa and
Narayanamma as adoptive parents to validate. Thus, Ex.B-1 does not give any
right to the claim of the alleged adoption is validly made thereunder. Coming
to the other recital in the document that thereby in future to perform the
obsequies to her and to her husband as natural son and to enjoy the property of
her which is succeeded by her parents with absolute rights concerned it is not a
persona designata confirmation of right but by referring to the right to the
adopted son and very adoption since invalid no rights accrue thereunder apart
from nothing to say any gift of the property or of title from the said stray
sentence muchless to consider as will to give any life to the recital to the
document to the title thereunder. From this background the other important
document to be appreciated is Ex.A-7 gift/settlement deed executed by
Narayanamma dated 15.06.1959 registered document No.745/59. The recitals
speaking that it was executed jointly in favour of (1) Aswarthappa (father of
the plaintiffs 2 to 4 & D-2), (2) Narayana @ Narayanappa (3rd defendant) (3)
Kakarla Rangappa's son, (adopted Rosanna) i.e., the 1st defendant by referring
her as Kakarla Narayanamma W/o.Rangappa and daughter of Balappa and the recitals
speak that said Aswarthappa and Narayana are her sister Pullamma's daughter's
sons and thereby also grand sons to her by that relation and the other person
Rosanna is her adopted son. Here also she referred as (Naa Dattu Kumarudu) and
not adopted son of her husband and of that all the three persons she performed
marriages and attending their welfare and thereby out of love and affection
towards they all out of the property described in the schedule belongs to her
she has given to the three persons equally out of half of her interest by
settlement, so that all the three have to take possession of after the life time
of her husband and herself and to enjoy with rights. It is to say right is
conferred and possession is postponed by reserving life interest and possession
in the life time of her husband and herself and she described without the
properties succeeded from her husband Balappa in saying properties of her and
those are in possession and enjoyment with absolute rights. The document no
doubt further speaks that on 13.11.1942 (under Ex.B-1) she and her husband taken
said Rosanna has brought adopted son and with his consent also thereby out of
her properties in the undivided half share she also jointly execute the document
in favour of the three. It is important to note that from saying she or her
husband or by both taken said Rosanna in adoption on 13.11.1942, it does not
give life to the adoption when there is no valid adoption by giving by the
natural parents of the boy and taking by her husband to adopt as discussed supra
from Ex.B-1 and the Ex.B-1 recitals of her giving any properties to her son
after life time of her husband also no way have any sanctity to create any right
thereunder Ex.B-1 as discussed supra and as such even from this reference no
rights created over the properties of her by the executant of Ex.A-7 settlement
deed dated 15.06.1959 by name Narayanamma, W/o.Rangappa who has also alive by
then and it is in fact referring his consent also for the settlement of her
undivided half of the property jointly in favour of the three persons which
include himself. Here there is a doctrine of election if at all he also to make
any claim under so called adoption but of conferring of any right over the
property of her not to rely on Ex.A-7 rather to approbate and reprobate. Coming
to said doctrine of election, it is well laid down in Karuna Kapali Vs.M/s
Lalchand PC Trust40 that he who accepts a benefit under a deed or will or other
instrument, must adopt the whole contents of the instrument, must confirm to all
its provisions and renounce all rights that are inconsistent with it. Election
is obligation imposed upon a party by Courts of equity to choose between two
inconsistent or alternate rights or claims in cases where there is a clear
intention of the person from whom he derives the one, that he should not enjoy
both. Every case of election therefore, presupposes plurality of rights, with
an intention of the party who has a right to control one or both, that one is
substitute for others. The party who is to take has a choice, but he cannot
enjoy the benefit of both as laid down in Streatfield Vs.Streat field and
explained by the three judge Bench in Nagubai Ammal Vs.B.shyam Rao41 that the
doctrine of election is not however confined to instruments. A person cannot say
at a time that a transaction is valid and thereby obtained some advantage, to
which he could only be entitled on the footing that it is valid and then turned
round and say it is void for the purpose of securing some other advantage, to
approbate and reprobate the transaction. In Halsbury's laws of England Vol.13,
page: 454 para 572, the principle has been described as species of estoppels.
The said principle is also been accepted in C.Bwepathuma Vs.Velasine S.Kadamboli
phaya42.
17(c) Even coming to Ex.B-2 Lagna Patrika of the marriage of the 1st defendant
referred in his evidence as D.W-1 in chief, it no way improves muchless deviate
to the said confusion as Ex.A-7 settlement deed dated 15.06.1959 itself speaks
Narayanamma and her husband Rangappa performed the marriages of Aswarthappa,
Narayana (father of plaintiffs 2 to 4 and D-3) but also of the 1st defendant
Rosanna by styling as adopted son. Even Ex.A-7 described as discussed above
referring him as adopted son so also Ex.B-1 but as discussed supra, there is no
valid adoption by giving and taking and there is no valid adoption by
incompetency of Narayanamma during life time of her husband to take adoption and
even Rosanna was the eldest son though not only son by then to his parents.
Once there is no valid adoption and Ex.B-1 does not give any right to claim as
adopted son muchless to claim any property thereunder Narayanamma as discussed
supra and subsequently Narayanamma while considering the properties in her own
executed Ex.A-7 settlement deed dated 15.06.1959 discussed supra giving it the
properties of her half share undividedly to Aswarthappa, Narayana and Rosanna
(D.W-1 1st defendant) and he was not even minor by then is not in dispute, he
did not chose to issue any notice questioning the said document muchless filed
any suit immediately after Ex.A-7 dated 15.06.1959 if at all aggrieved by the
dispossessions made by Narayanamma therein, he cannot say that he was adopted by
Rangappa and Narayanamma or he was given in adoption by his parents to Rangappa
and Narayanamma or he got any rights or the same is acknowledged in Ex.B-1 to
substantiate by Ex.B-1 or he was given any rights over entire properties under
Ex.B-1. The fact that 1st defendant as D.W-1 claimed his age at the time of
giving his evidence in 1993 of 58 years show that he was born in or around 1935
to say Ex.B-1 deed of 13.11.1942 was after completing his 6 years of age while
running 7th year and it is also his evidence in chief as D.W-1 that he was about
6 years old by the time of Ex.B-1. It is to say and born in 1935 or so he was
by the date of Ex.A-7 dated 15.06.1959 was about 34 years and Ex.A-7 also
referring his consent for the settlement. When he wants to rely Ex.A-7 to take
advantage of referring therein as adopted son even, he cannot ignore the other
part of the document referring he consented for giving the property to the three
persons thereunder to say he elected for the same and waived his right to
dispute the same, if not estopped by his conduct for so disputing. From this
background coming to the other document Ex.A-1 settlement deed dated 13.04.1973
executed by Narayanamma in favour of the 1st plaintiff in the suit, the
remaining undivided half of the property save the other half Ex.A-7 settlement
deed dated 15.06.1959. The recitals of Ex.A-7 speak that it was executed in
favour of T.Narsappa, S/o.Peda Rangappa i.e., Narayanamma's sister Pullamma's
son Narsappa first plaintiff in the suit. It also refers said relationship and
thereby being sister's son is like her son and that they have no issues, that
the settlee was also assisting her and her husband in the cultivation of
properties that her husband Rangappa breathed the last about 7 months prior to
that and even thereafter as usual he is assisting her in attending her works.
That out of love and affection towards him he want to settle some properties to
him and thereby settled the property with absolute rights by postponing
possession during her life time by retaining with her to enjoy without right of
alienation. It is about 5 years thereafter on 09.05.1970 admittedly
Narayanappa, W/o.Rangappa breathed the last it thereby establishes that Rangappa
died in 1972 and Narayanamma died in May 1979.
17(d) Said Narayanamma and Pullamma are the daughters of one Balappa and
Mangamma of Chayapuram not in dispute and also of the fact that besides
Narayanamma and Pullamma the two daughters, their parents Balappa and Mangamma
were having a son Chandrappa who died unmarried pre-deceased his mother
Mangamma, in 1928-29 i.e., about 8 or 9 years after death of Balappa original
owner in 1920. It is practically to say among the properties of Balappa and
Mangamma whatever Narayanamma got is thereby the maternal side properties and
not the properties of Narayanamma's husband (Rangappa) so far as the suit
properties are concerned. It is further to say whatever Narayanamma settled in
favour of his late Sister Pullamma's son under Ex.A-1 gift deed of 1973 and
daughter's two sons each 1/3rd out of the remaining half and to the 1st
defendant but so called adopted son of Narayanamma another 1/3rd out of half
i.e., 1/6th besides the 1/3rd out of remaining half to Rosanna so called adopted
son of Narayanamma i.e., 1st defendant herein. It is thereafter the litigation
was first started was first covered by O.S. No.274 of 1973 between Rosanna, the
1st defendant, in the suit said adopted son of Narayanamma on one hand and
Narayanamma along with her sister's son and sisters as plaintiffs therein on the
other hand.
17(e) The plaint in O.S. No.274 of 1973 marked as Ex.B-15 reads that the
defendant Kakarla Rosanna was referred as alleged adopted son of Kakarla
Rangappa (husband of Narayanamma) do also refers from para-3 of the plaint Ex.B-
15 that properties belonged to Prathipati Balappa i.e., Narayanamma's father and
also family genealogy Balappa's wife Mangamma was having a son by name
Chandrappa besides Pullamma and said Narayanamma and Balappa died leaving his
three children and after Balappa's property devolved upon Chandrappa who died
unmarried about 8 years after death of Balappa and thereby schedule properties
devolved upon Balappa's wife Mangamma i.e., mother of Pullamma and Narayanamma
and later Pullamma died and Mangamma also died and thereby claimed Narayanamma
became absolute owner of entire property after death of her mother Mangamma and
Narayanamma was cultivating the property with possession and enjoyment. Later
she executed gift-cum-settlement deed dated 15.06.1959 Ex.A-7 by settling
undivided half share of schedule properties in favour of Rosanna the 1st
defendant and two others Aswarthappa and Narayana (Narayanappa) jointly by
retaining possession with her while conveying title to take possession after her
life time. It is further averred from para-5 that the defendant Rosanna
alleging as adopted son of her by placing reliance upon adoption deed dated
13.11.1942 (Ex.B-1) and the so called adoption itself is invalid and
unenforceable and alleged adoption no way bind the properties of her
(Narayanamma) but for said Rosanna has got only and the only undivided joint
right along with Aswarthappa and Narayanamma in the property settled by her
(settlement deed dated 15.06.1959 as regards other joint half the 1st plaintiff
(Narayanamma) gifted in favour of the 2nd plaintiff Narsappa by retaining
possession with her with life interest enjoyment about three months prior to the
filing of this suit under Ex.A-1 dated 13.04.1973. It is further averred from
para-6 that the 1st plaintiff (Narayanamma) have been enjoying the schedule
mentioned properties and by residing in one of the items therein and her husband
also died 9 months prior to the filing of the suit (1972) as discussed supra and
thereafter she has leased out the schedule mentioned landed properties to the
second plaintiff i.e., Narsappa on Koru basis. It is further averred from para-
7 of the plaint that the defendant Rosanna without having any manner of title or
possession over the schedule properties during the life time of 1st plaintiff,
taking advantage of the death of her husband Rangappa and her helplessness being
widow, started threatening to enter into the schedule properties by use of force
and so proclaiming to cause obstruction to the enjoyment of her properties with
support of rowdy elements which made the plaintiffs (Narayanamma and Narsappa)
to file the suit for injunction restraining the defendant (Rosanna). The cause
of action averred was from the date of death of her husband and from three days
prior to the filing of the suit, when from the defendant started threatening to
enter possession by dispossessing her and prayer in the plaint as per para 10 is
to pass a decree in favour of the plaintiffs and against the defendant granting
permanent prohibitory injunction restraining him and his men from interfering
with peaceful possession and enjoyment of the properties and for costs. The
plaint filed was in July, 1973. The schedule properties described therein were
in 9 items of landed property in survey numbers 921/B (10-50 cents) 923/A (3-24
cents), 925/C (11-06 cents), 931/B (Ac.1-15 cents), 931/D (Ac.1-91 cents) 933/D
(Ac.7-03 cents), 1029/D (Ac.3-40 cents), 1038/D (Ac.1-54 cents) and 1041/B
(Ac.2-20 cents), total Ac.34-58 cents besides the house property of Chayapuram,
H/o.Konakandla village. The written statement filed by defendant Rosanna
(marked as Ex.B-16) reads that after death of Chandrappa (Narayanappa's brother
on 28.02.1974) his mother Mangamma (Balappa husband of Mangamma predeceased his
son Chandrappa) took her son-in-law Rangappa (husband fo Narayanamma 1st
plaintiff in the suit) as her illatom son-in-law having affiliated by illatum
adoption by giving half share in the property as per custom and usage prevalent
in their area and other half should go to her daughter Narayanamma (1st
plaintiff) and since then Rangappa and his wife Narayanamma were living in the
house of Mangamma and thus it is not 1st plaintiff Narayanamma alone that became
absolute owner after death of Mangamma, but for to say Narayanamma and her
husband were having undivided half each as joint owners in possession with right
and enjoyment. It is further averred in para-5 of the written statement that
was marked as Ex.B-22 that late Rangappa and 1st plaintiff (Narayanamma) have
adopted Rosanna as their adopted son on 13.11.1942 under registered deed
executed by the 1st defendant and attested by late Rangappa. This portion reads
that the adoption was under the document and not any oral adoption followed by
any ceremony and subsequently acknowledged by the document Ex.B-1 as discussed
supra have been from said recitals therein and from said recitals the said
contention of Rangappa and Narayanamma both adopted him is proved false as it
was the deed executed by Narayanamma for herself as executant and in the name of
her as minor Rosanna's guardian-cum-adopted mother. It is already discussed on
said adoption by Narayanamma during life time of her husband Rangapa is invalid.
Mere attestation by Rangappa of the document no way confers any right muchless
to say or describe Rangappa as co-executant and he got knowledge, even
attributing knowledge of the contents of the document not possible without
cogent evidence, he has taken as with knowledge and when it is not as per law
and hit by law and there is no proof of giving of adoption by the natural
parents of Rosanna and there is no proof of taking of adoption by the person
competent i.e., Rangappa, the execution of the deed by Narayanamma as if she
adopted with alleged consent of her husband no way sanctifies. The other
contention in the written statement Ex.B-16, para-5 is that as per premise of
the adoption deed (Ex.B1) is not only adopted son of Narayanamma but also
created immediate rights of him in respect of her share of properties devolved
upon, from her parents and delivered possession thereafter. As discussed
already, from reading of Ex.B-1 and Ex.A-7 she referred all her absolute
properties and did not refer has got only share in the properties muchless
saying her husband was illatum son-in-law and given half share in the properties
after death of her mother. Ex.B-1 even describes her properties which she get
from her father Balappa. There is nothing to speak any delivery of properties
to Rosanna by her; for giving any credence to said contention in the written
statement para-5, page-2 of she delivered possession to him of any properties
muchless he was in possession and enjoyment in his own right. In fact as
described above he was admittedly aged 7 years and he deposed as D.W-1 by then
aged 6 years. Once he was minor admittedly 7 years by alleged adoption deed
dated 13.11.1942, the question of settling any properties to him as adopted son
under the document or his possession and enjoyment thereunder does not arise.
What all described is being adopted son he has to enjoy after life time of her
husband and herself by performing their obsequies and no interest presandi
thereunder created and even taken as created is subject to the adoption as
adopted son and that was invalid no right to possession thereunder to confer as
discussed supra. Coming to his Ex.B-16 written statement in para-5 further
avers at page 2 he alleges after Rangappa's death, the other half in the
properties as his adopted son devolved on him or he in his own right and
enjoyment in possession of the plaint schedule properties, same are not tenable
muchless to dispute possession of Narayana over the properties. Ex.B-16 written
statement further averments are that the 1st plaintiff (Narayanamma) executed
gift deed on 13.06.1969, (in fact it is Ex.A-7 dated 15.06.1959) alleging that
she has not the sole owner to execute the gift deed for having a share in the
plaint schedule properties only to validate the gift only in her share. It is
important to note he did not dispute the said gift deed he did not deny the said
gift deed and its execution, but for if at all to say supra, for which as
answered already it requires no repetition of he was conferred with no right in
any extent of property of her. Coming to written statement para-7 averments on
the date of adoption deed dated 13.11.1942 the 1st plaintiff Narayanamma created
rights in favour of Rosanna in all her properties which she inherited to her and
delivered possession and thereby he is joint owner of plaint schedule properties
as adopted son and after death of her adopted father Rangappa got right and
thereby the suit for injunction is not maintainable, it is as answered supra no
way requires repetition for no right given no possession delivered and no right
he got for such contention. Having accepted Ex.A-7 gift deed by specifically
not denied and of it is acted upon having not disputed. In the absence of proof
of validity of the adoption muchless he was adopted by Rangappa (Husband of
Narayanamma) muchless Rangappa was given half of the properties by mother-in-law
of Rangappa named Mangamma as illatum son-in-law, his right to claim any
entitlement over any of the properties muchless with possession does not arise
apart from no right conferred even under so called adoption deed Ex.B-1 dated
13.11.1942 and for no such whisper even in Ex.B-1 or Ex.A-7 to let in any oral
evidence contrary to said documentary evidence as discussed supra. Further once
he accepted and not disputed Ex.A-7 gift deed dated 15.06.1959 the possession is
retained with Narayanamma for the property by conferring right in favour of
three persons along with the 1st defendant to have undivided 1/3rd out of the
said settlement deed which is only half share by retaining other half with her
not to say only undivided right after her life time for 1/6th out of properties.
He cannot thereby claim any right of possession even taken for arguments he was
allowed to continue in management of any properties of Narayanamma in her life
time as alleged adopted son. Coming to the Ex.B-16 further averments from para-
8 that he was in possession and enjoyment along with Narayanamma as joint owner
concerned, as discussed supra the adoption deed is invalid and without authority
and there was no giving and taking and there was no right created in any
properties pursuant to it, thus question of claiming joint rights or joint
possession does not arise. Ex.B-16 written statement para-9 averments, are
nothing but repetition of what is discussed supra. His further averments from
para-11 of the Ex.B-16 written statements regarding his payment of taxes no way
creates rights but for from settled law of any payment is on behalf of the owner
entitled to possession and not even to claim any adverse possession muchless
right of possession.
17(f) Even coming to with the evidence of 2nd plaintiff Narsappa as P.W-2
one T.Pullayya 1st plaintiff and one T.Laxmayya and with reference to documents
Exs.A-1 to A-10 i.e., gift deed, No.3 accounts, cist receipts relating to the
suit properties and the voters list from 1959 to 1971 and from the evidence of
Ch.Venkatappa, T.Peda Venkata Rao, K.Srinivasa Rao, Veerababu, D.Ws 1 to 5 with
reference to Exs.B-1 to B-15 statement before police in criminal case of
T.Narsappa and affidavit of T.Laxmappa and adoption deed of 1942 and cist
receipts, cist payment book, Lagna Patrika (wedding card of Rosanna) No.10(1)
adangal, police complaint, L.C.C. notice and order and notice to surrender,
placed by the parties the suit in O.S. No.274 of 1973 by judgment dated
23.04.1979 ended in dismissal. The judgment speaks that, defendant's evidence
in the suit shows Rangappa was taken as illatum son-in-law by Mangamma as per
custom and he was managing the properties. Mulla Hindu law under note 515 under
the head Illatum son-in-law by custom of affiliating the son-in-law and giving
him a share as per Old Madras Presidency to which the State of A.P. is part and
the custom was given a social recognition by referring to a judgment of
Kirstnamma V. Venkatasubbayya43 regarding the said custom not old; that D.W-2
deposed in this regard to believe the contention of the defendant and though
under Mulla under head 515(a) it speaks a specific agreement is the basis of
this affiliation, difficult to secure such evidence to prove for same taken
place long ago and when plaintiffs not adduced any evidence rebutting said
evidence of D.Ws by denying illatum adoption, despite D.Ws 1 and 2 speak that in
Kamma community there is such custom, it is difficult to prove by securing
documents of the 60 years old transaction taken place if at all prior to 1936
and thereby held that Mangamma had adopted Rangappa, the husband of Narayanamma,
as illatum son-in-law; once that is the case, 1st plaintiff Narayanamma even got
in remaining half, for which the gift deed Ex.A-7 dated 15.06.1959 said to have
been executed; the defendant Rosanna when contends that he was taken in adoption
by Narayanamma and Rangappa in 1942 under the document filed, who is no other
than Rangappa's brother's son, D.W-1, one of the attestor-P.C.Venkatappa to the
adoption deed that Rosanna was taken in adoption and at that time Rangappa the
husband of Narayanamma was also present along with Narayanamma, executed the
document and they adopted with consent of parents of Rosanna and there from all
went to Guntakal to get the adoption deed executed and registered and since then
Rosanna was cultivating all the properties to say from 1942.
18) In fact said conclusion of the trial Court is also no basis as discussed
supra of Rosanna by then admittedly 6 or 7 years a minor and the question of his
inducting to possession as adopted son of any properties for his personal
cultivation and management does not arise from his age of 6 years and that
itself belies above evidence and as discussed supra the adoption deed of the
year 1942 Ex.B-1 herein nowhere speaks the parents of Rosanna present and given
the child in adoption muchless stood as attestors and there is no recital of
giving and taking muchless or Rangappa husband of Narayanamma and it is not the
adoption between Rangappa and Rosanna's father Pullayya @ Pullanna and no oral
evidence can be substituted contrary to the documentary evidence even under
Section 91 and 92 of the Evidence Act but for to explain anything from the
contents and the said contrary evidence no way surviving to prevail over the
documentary evidence. Thus, above findings no way improves the lis in favour of
the appellant-1st defendant. Said decree and judgment in O.S. No.274 of 1973
which are marked as Ex.B-18 and B-17 respectively was subject matter of appeal
in A.S. No.119 of 1979 which is marked as Ex.A-2. The appeal judgment of the
District Court in A.S. No.119 of 1979 i.e., the appeal filed by 2nd plaintiff of
O.S. No.274 of 1973 T.Narsappa as Narayanamma the 1st plaintiff in the suit by
then breathed the last on 09.05.1979 and the appeal filed against all the 6
defendants of the suit and the Ex.A-2 appeal judgment of the District Court
speaks from para-6 that point arises for consideration in the appeal was whether
the appellant in possession of the plaint schedule properties to the exclusion
of respondents for entitlement of injunction prayed for. From para-7 onwards of
the appeal judgment it was observed that, when admittedly the plaint schedule
properties originally belonged to Prathipati Balappa and Balappa had three
children, Chandrappa, Pullamma and Narayanamma and Narayanamma was married to
Rangappa and Rangappa brother's son is the said Rosanna 1st defendant and
Aswarthappa and Narayanappa the other donees along with Rosanna (of the gift
deed dated 15.06.1959) of the daughter's son of Pullamma (sister of
Narayanamma), the respondents 2 to 5 are the children of Aswarthappa and 6th
respondent is brother of Aswarthappa, for Aswarthappa no more, when Balappa died
50 years ago to the plaint i.e., prior to 1923 and on his death of his
properties were devolved on his son Chandrappa who died 8 years later (prior to
1930-31) and after his death the properties devolved on Mangamma (Chandrappa's
mother and Balappa's wife) and out of the two daughters of Mangamma, Pullamma
pre-deceased Mangamma, on the death of Mangamma about 18 years before filing of
the suit in 1973 (in fact Mangamma died in 1942 or so) as she was not alive even
by the date of the so called adoption deed dated 13.11.1942 from its recitals
and there from the properties devolved upon Narayanamma only surviving daughter
of Mangamma i.e., the 1st defendant therein and since then she was in possession
and enjoyment and leased out the properties to the 2nd plaintiff particularly
after the death of her husband Rangappa (about few months before filing of suit
in 1973) and in the plaint averred that Rosanna was interfered with possession
by threatening her and the 1st defendant Rosanna came with contention in the
written statement for no written statement filed by defendants 2 to 5 sons of
Aswarthappa or defendant No.6 Narsappa alleging Mangamma took Rangappa as
illatum son-in-law after death of Chandrappa to give half share in the
properties and Rangappa and Narayanamma adopted 1st defendant in 1942 and 1st
plaintiff gave her half share to 1st defendant, the 1st defendant having not
denied specifically plaint allegations of death of Balappa and Chandrappa and
Pullamma of respective dates. The 1st defendant for setting up his case of
alleged adoption in 1942 has no knowledge to speak the alleged illatum adoption
of Rangappa by Mangamma, so to plead in the written statement muchless the
illatum adoption of Rangappa by Mangamma or so to plead in the written statement
muchless the illatum adoption with agreement to give any half share, when he
does not know anything as to when exactly illatum adoption takes place and when
he admitted in cross-examination as D.W-1 the lands in dispute were the lands of
Narayanamma which she got from her mother Mangamma and D.W-2 also witness to
speak illatum adoption of Rangappa, admitted he has no personally aware of said
illatum adoption as he was a young boy, the evidence on record nowhere show
Rangappa was taken as illatum son-in-law by Balappa muchless with any agreement
to give half share in the property and thereby lower Court went wrong so to
conclude of alleged illatum adoption of Rangappa by Balappa and Mangamma is
proved and to that conclusion the appellate Court referred a judgment in Pedda
Changamma V. Chinna Chengamma44 that for illatum adoption it is essential pre-
requisite of adoptive must marry the daughter of the adopter and that there must
be an agreement to give a share and mere living in the house of father-in-law
would not make him in illatum son-in-law. In the absence of establishment of
both the ingredients in need to confer the status and the same principle is
reiterated Venkayya V. Satyanarayana45. The 1st defendant also admitted that he
subsequently filed O.S. No.80 of 1977 on the file of Sub-Court, Anantapur for
possession of plaint schedule properties against Narsappa (2nd plaintiff in O.S.
No.274 of 1973). Said Narsappa filed I.A. No.231 of 1981 seeking permission to
adduce evidence by filing certified copy of plaint in O.S. No.80 of 1977 as
additional evidence which petition was opposed even that suit was filed
subsequent to the giving of evidence in the suit and thereby he could not adduce
evidence in the trial Court in seeking to adduce as additional evidence thereby
received the same and marked as Ex.A-11, plaint copy, wherein as plaintiff the
1st defendant to the suit O.S. No.274 of 1973 by name Rosanna alleged that those
were the absolute properties of Narayanamma. It belies his contention of
Rangappa illatum son-in-law muchless under any custom of Kamma community and
Rosanna as D.W-1 in the suit O.S. No.274 of 1973 deposed of alleged adoption by
Rangappa and Narayanamma in their house in 1942 and his natural parents and
adopted parents present and natural parents agreed to give him in adoption and
on the following day the adoption was recorded by the execution of deed
(registered adoption deed dated 13.11.1942) and adoptive father Rangappa
attested the deed and therefrom he was living in the house of adoptive parents
and his marriage was performed by preparing Lagna Patrika describing as adopted
son and he deposed as D.W-5 that he was minor hardly 10 years by then and D.W-1
deposed of no special rituals performed for alleged adoption and the evidence is
not even consistent with D.Ws 2 to 5 with reference to so called adoption deed
marked as Ex.B-3 as contended.
19) When the recitals speak Narayanamma adopted with consent of husband, even
that itself is suffice to say the adoption is invalid for there is nothing even
established of natural parents delivered the child to Rangappa and his wife
Narayanamma to take by them in adoption as a pre-requisite even no rituals
required to the same in particular form, further in the absence of evidence of
giving and acceptance, no presumption can be drawn as held in Vaithalingam V.
Natesa46 and there can be no valid adoption unless adoptive boy is transferred
from one family to another family by ceremony of giving and taking required to
be true as also held in Lakshman Singh V. Rup.Kanwar47. The evidence of D.Ws 1
and 2 nowhere shown the natural parents agreed to give the adoptive boy to so
called adoptive parents and pursuant to it giving and taking of adoption even
from so called deed recitals. Even taken the recital in the so called deed of
adoption of Rosanna to enjoy with absolute rights on the properties of
Narayanamma which she inherited from her parents. It shows Mangamma died in
1949 or so and thus by then Narayanamma even acquired no property rights in the
property to convey under so called adoption deed in 1942. Thus, no rights in any
property to convey muchless conveyed from said recitals of 1942 document supra.
When Narayanamma got her husband, who admittedly died few months before filing
of the suit in 1973 and claimed that she was in possession and later through 2nd
plaintiff by leased out, the lower Court went wrong in not believing the
evidence of plaintiffs in support of the plea. Coming to the gift of joint
rights in the half share of Narayanamma under gift deed dated 15.06.1959
alleged, which was in favour of Rosanna, Aswarthappa, Narayana all three persons
to get jointly, there is nothing to reject said evidence muchless to doubt the
Ex.A-1 gift deed (15.06.1959) marked therein whereunder Narayanamma was given
her half share out of her properties to the three persons jointly and there
remain the other half and even that document shows she has been cultivating the
said properties and the revenue adangals No.2 account, No.13 account also show
Narayanamma was paying land revenue after death of her mother Mangamma over the
properties with possession including for the fasali 1382 and the tax receipts
book also show Narayanamma was paying the land revenue including for the years
1972-73 and even Rosanna the so called adopted son stated that about 9 months
after death of Rangappa, Narsappa, 2nd plaintiff in suit O.S. No.274 of 1973,
took away Narayanamma to their house and started disputes and also gave police
report against him as if he was interfered with his possession and he gave an
undertaking of he would not interfere with his possession. He also admitted
that he was paying land revenue in the name of Narayanamma. Patta was to say
transferred in his name, it is not known how transfer of patta was affected
during life time of Narayanamma in the name of Rosanna. D.W-4 village Munsiff
stated that Rosanna was paying land revenue on behalf of Narayanamma and D.W-1
also stated that Narayanamma was in possession of the same and D.W-2 also stated
Narayanamma alone in possession and D.W-3 also stated that only after death of
Narayanamma, Rosanna came into possession of the house and D.W-4 also stated
that all the properties belongs to Narayanamma and this is clear from the said
evidence including from the evidence of D.W-5 of Narayanamma's possession and
enjoyment of property by paying taxes in her name being its owner subject to the
gifts by retaining life time possession and enjoyment. 1st defendant Rosanna
stated that after police complaint was given under Ex.B-1, the suit filed was
within 2 months and to say that his undertaking/statement was obtained by
coersion, there is no basis. In fact Ex.B-1 dated 29.06.1973 was few days prior
to the date of filing of suit of 10.07.1973 and as concluded by the appellate
Court in its judgment Ex.A-2, the 1st respondent was cultivating the suit lands
by the date of suit only on behalf of Narayanamma and even Narayanamma was alone
in possession as on the date of suit, however, for the oral lease set up by 2nd
plaintiff-appellant, for no proof and Narayanamma died subsequently, the
appellant is not entitled to the suit relief of injunction. No doubt, the
appellant got half share in the properties by virtue of the gift in his favour
by Narayanamma. When such is the case under the other gift by Narayanamma, the
defendants are entitled to the remaining half and between co-owners there cannot
be no permanent injunction in dismissing the appeal ultimately.
20) It is to say from the first appeal judgment that, the finding of the trial
Court in O.S. No.274 of 1973 of Rosanna was the adopted son by virtue of the
adoption deed dated 13.11.1942 is not correct for there is no valid adoption,
but for to say Rosanna, Aswarthappa and Narayana were given to give half share
out of properties of the Narayanamma by her earlier and the other half given to
Narayanappa and as such between co-owners there can be no injunction in the
whole property undivided.
21) In the second appeal against the judgment dated 18.03.1987 covered by Ex.B-
21 i.e., S.A. No.170 of 1982 against A.S. No.119 of 1979 against O.S. No.274 of
1973, it was held that in view of the present suit in O.S. No.102 of 1985 filed
for partition in Sub-Court, the Subordinate Judge to dispose of the said suit on
merits accordingly, without being influenced by the observations of first
appellate Court in A.S. No.119 of 1979.
22) Before coming further to the present lis, even uninfluenced by said
observations, what is discussed supra is crystal clear of Narayanamma the
absolute owner in possession and enjoyment and the adoption deed is invalid as
discussed supra in detail and Narayanamma never parted with her possession and
enjoyment even conveyed rights under the two gift deeds Ex.A-7 and A-1
respectively and it is after lifetime of Narayanamma the respective donees of
the gift deeds to the respective extents entitled to possession that was
reserved by her for her enjoyment.
23) Apart from the above, coming to the lis in O.S. No.80 of 1977, Ex.A-3 to A-6
are the plaint, written statement, judgment and decree in O.S. No.80 of 1977.
As discussed supra, the plaint in O.S. No.80 of 1977 was marked as Ex.A-11 in
A.S. No.119 of 1979. Thus, so far as O.S. No.274 of 1973 concerned it is left
open to decide the present lis in O.S. No.102 of 1985 independently and
uninfluenced by any adverse observations in O.S. No.274 of 1973 and the findings
in A.S. No.119 of 1979. But for that, it nowhere set aside in the second appeal
S.A. No.170 of 1982 covered by Ex.B-21 the appeal judgment findings. As per
O.S. No.80 of 1977 plaint copy Ex.A-3 which is a suit filed by K.Rosanna against
T.Narsappa 2nd plaintiff and 6th defendant of O.S. No.274 of 1973 and Yanappa
i.e., 1st defendant against plaintiffs of O.S. No.274 of 1973 filed on
21.11.1974 as indigent person informa papuries seeking lis; the plaint averments
were that the A-schedule properties are the absolute properties of Kakarla
Narayanamma who died on 21.10.1974 (in fact she died on 09.05.1979 only during
the pendency of O.S. No.274 of 1973 as per the record), that Rangappa was her
husband, who died in or about February, 1973. In fact in the registered gift
deed dated 13.04.1973 in favour of Narsappa by Narayanamma, it was referred he
died 7 months prior to that, that was in July 1972, that plaintiff was taken in
adoption of Rangappa and Narayanamma as per Hindu Dharma Sastras being the
adoptive father's brother's son of same family with all ceremonies of giving and
taking of the adoption dated 12.11.1942 and evidencing the same an adoption deed
was executed on 13.11.1942 by Narayanamma with consent and approval of her
husband and other respective people were also attested in the adoption deed and
later plaintiff was treated as adopted son of Rangappa and Narayanamma, Balappa
was also brought to the family by his father-in-law for no male assistance since
only child Chandrappa died and plaintiff was living with Narayanamma in her
father's house along with husband of Narayanamma who were affectionate towards
him and performed his marriage subsequent to said adoption and he continued as
their son and they treated him as adopted son and in the registered deed of
adoption dated 13.11.1942, all properties belonging to Narayanamma and Rangappa
were vested on him thereby he is entitled to the properties shown in the plaint
A-schedule which has been in his possession and enjoyment uninterruptedly since
1942 till she was ousted from possession by orders in I.A. No.674 of 1973 in
O.S. No.274 of 1973 and he perfected title by adverse possession over the
properties and Narayanamma and the 1st defendant herein by name T.Narsappa as
plaintiffs filed O.S. No.274 of 1973 obtained temporary injunction against him
and because of the temporary injunction orders he was ousted from possession as
supra by her and her eldest sisters Pullamma's son-Narsappa, that said
Narayanamma's eldest sister's daughter's son Narayana (D-2 in the suit) by
taking advantage of old age and fickle mind of Narayanamma, prevailed in
creating a document for suit properties which does not create any interest as by
1942 itself she completely divested of all her rights and of her husband over
the properties. Thus, no right to convey and by virtue of filing of O.S. No.274
of 1973 for injunction a cloud is cast on his right, title and interest, he
filed the suit for declaration of title and possession as dispossessed by taking
advantage of order in I.A. No.674 of 1973 in O.S. No.274 of 1973 and he got
cause of action for the same from date of adoption on 12.11.1942 and deed of
adoption on 13.11.1942 and in February, 1973 when Rangamma died, in October,
1974 when Narayanamma died and in 1942 when from he was exercising right over
the properties and since when he was dispossessed as per orders in I.A. No.674
of 1973 in I.A. No.274 of 1973. In fact, in the plaint referred supra Ex.A-3,
the date of death of Rangappa given as false so also date of death of
Narayanamma. The so called adoption allegedly taken up by giving and taking on
12.11.1942 not made a whisper in his written statement as sole defendant, no
doubt subsequently after defendants 2 to 6 added, in O.S. No.274 of 1973, in his
evidence as D.W-5 the alleged giving and taking of adoption introduced from the
evidence of him and of the alleged attestor to the document. Even said oral
evidence introduced with no plea which is contra to the recitals of the adoption
deed dated 13.11.1942 cannot be permitted for the document is silent as to
giving and taking by the natural parents of Rosanna muchless by Narayanamma's
husband Rangappa, but for alleged adoption by Narayanamma under the document
which is observed as invalid since against the law in discussing and dealing
with the appeal from what is concluded supra to substantiate. To say he is not
the adopted son of Rangappa and to claim as adopted son of Narayanamma, from the
invalid document dated 13.11.1942 for her no right by then even in any
properties and there is no proof of giving and taking which is a pre-requisite
to establish so called adoption since not proved muchless conveying any property
thereunder. The question of any delivery of possession to him also muchless of
his taking of possession and started cultivation and enjoyment from then of
hardly 6 years old, besides not believable does not arise practically for any
adverse possession against Narayanamma for not even shown represented by any
other person as guardian, apart from the fact of there is no convenience of any
property rights over the property of Narayanamma under the document to him by
any alleged recital of 1942 document as concluded supra, to claim any right
muchless with title or adverse possession. That also belie from evidence on
record covered by O.S. No.274 of 1973 more particularly from the evidence of
D.Ws 1 to 4 and of D.W-5 from the admissions in the cross-examination of
property standing in the name of Narayanamma till her death and any tax paid by
him was only on behalf of the Narayanamma and not in his name and there was no
transfer of the property by mutation but for just before filing of the suit in
O.S. No.274 of 1973 if any from D.W-4's evidence and even the revenue people
have no authority to change the mutation and that does not confer any right and
having paid the tax on behalf of Narayanamma by acknowledging her right over the
property, he cannot claim by any possession over the property muchless to set up
any adverse possession. In the written statement in O.S.No.80 of 1977 marked as
Ex.A-4 the said T.Narsappa (Plaintiff in O.S. No.102 of 1985) contended that the
property belongs to Narayanamma is true and her husband died in 1973 also true,
so also she died in October, 1974, but for to say the allegation of his taking
of adoption by Narayanamma and her husband Rangappa under Hindu Law as false and
there was no any ceremony of giving and taking for alleged adoption, muchless
prior to the execution of said document dated 13.11.1942 so to claim and for
Narayanamma to execute a document to adopt, she has no competency or authority
to adopt any person muchless said Rosanna (plaintiff) and the alleged consent of
her husband is not correct for no consent in writing required by law to adopt
after his life time. Said document has no legal sanctity to make a claim
thereunder muchless to maintain the suit with such claim and he filed the suit
with an invented claim for non-existing right and he never lived with
Narayanamma and Rangappa and the alleged adoption deed recitals give no right or
possession thereunder for even saying he was ousted by virtue of orders in I.A.
No.674 of 1973 in O.S. No.274 of 1973 for the first time. It was thereby the
injunction order was granted against him and the appeal against the order in
I.A. No.674 of 1973, as C.M.A. No.20 of 1973 was also ended in dismissal by
confirming the injunction order which he cannot question. He contended that they
never prevailed upon Narayanamma to execute any document for her properties.
Narayanamma in her free will and volition and with full knowledge and in sound
mind executed the gift deed dated 15.06.1959(Ex.A-7) gifting undivided half of
her properties in plaint-A schedule in favour of Rosanna, Aswarthappa and
Narayana by reserving life interest possession and enjoyment with her and later
she executed another gift deed in 13.04.1973 (Ex.A1) voluntarily in favour of
Narsappa for the remaining half by reserving life interest, possession and
enjoyment with her and she also executed a power of attorney in favour of
Narsappa to manage her properties and after death of Narsamma and the gift deeds
the 1st defendant entitled to possession of half of the properties and Narayana
(2nd defendant to the suit), the plaintiff Rosanna entitled 1/6th and other
1/6th by the sons and daughter of Aswarthappa and thereby the suit for
declaration and possession for entire plaint schedule property is not tenable
and he has no right to question the gift deeds and the suit is bad for non-
joinder of parties and the suit is not maintainable and there is no cause of
action and to dismiss the suit.
24) It is for default of said Rosanna, the Court dismissed the suit covered by
dismissal judgment and decree dated 26.08.1982 which are Exs.A-5 and A-6. There
is nothing to show any filing of petition for restoration of the suit O.S. No.80
of 1977 dismissed for default on 26.08.1982 which is covered by Exs.A-3 to A-6
in the lis covered by the present appeal on hand against O.S. No.102 of 1985.
25) The 1st plaintiff T.Narsappa deposed as P.W-1 that the suit properties
originally belonged to T.Balappa who died 70 years ago prior to his evidence in
1992 (as stated already from the record it shows Balappa died in or around 1920
and his son Chandrappa died 8 years later in or around 1928-29) and he was
having wife Mangamma and two daughters Pullamma, Narayanamma and Pullamma also
died and after death of Chandrappa, S/o.Balappa wife of Balappa, Mangamma,
succeeded the properties and she also died and after her death as one of her
daughter pre-deceased her, the only surviving daughter Narayanamma succeeded the
properties and that he is son of said Pullamma pre-deceased sister of
Narayanamma. He also deposed that the plaintiffs 2 to 4 in the suit Narayana
Swamy, Narasimhulu, Rajendra, S/o. Aswarthappa besides 2nd defendant Narayanamma
D/o. Aswarthappa, 3rd defendant Narayana (brother of Aswarthappa) are his late
sister's issues i.e., Aswarthappa and Narayana are his sister's sons. He
further deposed that Narayanamma, his mother's sister, executed the gift deed in
1973 (Ex.A-1) in his favour giving half of her property by reserving life
interest enjoyment with possession with her and it was executed as per the
instructions of Narayanamma in a sound and healthy state of mind and it was
purely executed and attested after her understood as contents which were as per
her say after the same was read over in the presence of attestors besides
himself present and she cause it registered, the Registrar also read over and
she accepted and put her thumb impression and was identified by identifying
witnesses for registration and after life time of Narayanamma he came into
possession of property pursuant to the gift deed. He deposed that Narayanamma's
husband Rangappa had no property he never went into illatum son-in-law to
Mangamma and Balappa and Rosanna was never adopted by Rangappa and Narayanamma
and while he was cultivating the property in the year 1973 Rosanna along with
some police came and obstructed and they filed O.S. No.274 of 1973 and obtained
temporary injunction against Rosanna and against the suit dismissal he filed
appeal covered by Ex.A-2 appeal judgment dated 24.09.1981 in O.S. No.117 of 1979
holding between co-owners there could be no injunction as he was holding half of
the suit schedule property and in the remaining half Rosanna got right along
with others and Rosanna filed O.S. No.80 of 1977 as indigent person in 1974 and
the suit was dismissed for default covered by Ex.A-3 to A-6 plaint, statement,
decree and judgment. Prior to the suit he asked the defendants to cooperate for
partition and they did not agree, which made him to file the suit for partition
and separate possession (of 5/8th share) and for other reliefs in plaint
schedule properties. As the remaining properties belongs to Aswarthappa,
Narayana and Rosanna to whom Narayanamma gifted with life interest possession
covered by Ex.A-7 (dated 15.06.1959) and as plaintiffs 2 to 4 succeeded the
1/3rd share of Ex.A-7 that of Aswarthappa the suit is for their share also for
partition.
26) In the cross-examination deposed that the 1st defendant Rosanna originally
native of Kasipuram-Kottala and Narayanamma's husband Rangappa was his father's
brother and denied the suggestion and since Rangappa's marriage with Narayanamma
he was residing at her parents' place Chayapuram or he was taken as illatum son-
in-law by his mother-in-law Mangamma after death of Mangamma's husband Balappa
and son Chandrappa. He deposed that he was cultivating the plaint schedule
property on Koru basis till death of Narayanamma and when Rosanna (1st
defendant) obstructed the suit for permanent injunction (O.S. No.274 of 1973)
filed and he denied the suggestion that Rosanna, 1st defendant, was taken in
adoption by Narayanamma under adoption deed (Ex.B-1 dated 13.11.1942) and also
denied the suggestion that Narayanamma conveyed her properties under the same to
Rosanna i.e., 1st defendant. In the further cross-examination he deposed that
Narayanamma executed Ex.A-1 dated 13.04.1973 in his favour prior to their filing
of suit O.S. No.274 of 1973 in Gooty Munsif Court he also deposed that the other
half of the properties gifted by Narayanamma to his sister's sons and Rosanna
(1st defendant) equally (Ex.A-7 dated 15.06.1959) it was prior to the gift to
him. He denied the suggestion of Narayanamma executed the Ex.A-7 gift deed
(dated 15.06.1959) with consent of Rosanna (1st defendant). If that is the
case, Rosanna admits the Ex.A-7 gift deed dated 15.06.1959 in referring the
properties as that of Narayanamma in saying he consented and in taking undivided
1/3rd out of half of the properties of her gifted thereunder as remaining half
of her property gifted to Narsappa, 1st plaintiff, under Ex.A-1 dated
13.04.1973. Thus question of setting up adverse possession does not arise apart
from having elected question of reverting back to claim any rights under so
called adoption from 1942 does not arise. P.W-1 denied the suggestion that
Narayanamma educated Rosanna and also performed his marriage or for the suit
properties patta stand in the name of Rosanna (1st defendant). He deposed that
the patta stands in his name and other defendants also for the suit properties
and prior to the transfer in their name, that stood in the name of Narayanamma
and Narayanamma in her life time was paying taxes for the suit properties. He
deposed that Rangappa died 10 years earlier to Narayanamma and Narayanamma died
8 years prior to Ex.A-1 gift deed. In fact as per the record, more particularly
from Ex.A-1 gift deed dated 13.04.1973 recital, Rangappa died 7 months before to
say in July, 1972 whereas Narayanamma died on 09.05.1979. Though Rosanna as
plaintiff in O.S. No.80 of 1977 claimed Narayanamma died in October, 1974. He
rightly denied the suggestion that Rangappa died 2 months 15 days prior to death
of Narayanamma. He deposed that Rangappa came to Chayapuram where he died 8 or
10 months struck off and retyped with days prior to his death at Chayapuram. He
deposed that before death of Narayanamma, he suffered with Diarrhea, aged at
about 74 years with eye sight and deafness and after death of her husband
Rangappa, Narayanamma was looking after by Aswarthappa and Narayana, her
sister's daughter's sons and on behalf of Narayanamma they and himself were
cultivating the lands and Rosanna, 1st defendant, was not with Narayanamma
before her death and the suggestion that Rosanna was paying land revenue since
he attained majority for the lands is denied. He deposed that in the land
ceiling declarations, himself and other plaintiffs show suit lands for about
Ac.15-00 as of him and some by others and the declarations were filed during the
life time of Narayanamma after the death of Rangappa. He deposed that he
performed the obsequies of Narayanamma and not by Rosanna. He deposed that
Narayanamma was hale and healthy till 10 days prior to her death and he was 20
years older to Rosanna (1st defendant). He deposed that for the lands gifted to
him (under Ex.A-1 dated 13.04.1973) he did not pay land revenue during life time
of Narayanamma or later and he cannot say Rosanna, 1st defendant, was paying any
land revenue but for his saying. He deposed that 2 or 3 months prior to the
gift deed, Narayanamma was saying to execute gift deed in his favour and he
denied the suggestion of he brought the gift deed executed by use of force and
stated no knowledge about 1st defendant cause published in Andhra Prabha dated
05.06.1973 (Ex.B-20) that Narayanamma was taken away by them by force and
obtained documents from her.
27) In fact it is necessary to mention here that if really 1st defendant and
Narayanamma were living together either at his house Kottala or at her house
Chayapuram and really she was taken by plaintiff Narsappa and others by force
prior to execution of Ex.A-1 gift deed dated 13.04.1973, he could not wait for
giving the paper publication dated 05.06.1973 for about three months and it
clearly shows his intention is something suspicious in giving of paper
publication after knowing about Ex.A-1 gift deed dated 13.04.1973 executed by
Narayanamma. It is not his case that Narayanamma disputed about her execution
and cause issued any notice or cause issued in the news paper publication. Even
Narayanamma filed O.S. No.274 of 1973 along with Narsappa against Rosanna, 1st
defendant, some time after the gift deed Ex.A-1 dated 13.04.1973 only in June or
July, 1973 as discussed supra by reiterated the gift and not disputed the gift
executed by her. Once the executant admitted there is no more proof required for
the gift for not the case of anybody of not accepted. In the cross-examination
further of P.W-1 Narsappa by 1st defendant Rosanna, he deposed that 1st
defendant was residing in the house of Narayanamma since one year and after
death of Narayanamma her house was in the possession of 1st plaintiff, P.W-1 who
was looking after and not given to anybody and two years after death of
Narayanamma only Rosanna 1st defendant occupied the house by force for which he
neither reported to police nor cause issued notice. He denied the suggestion
that, Narayanamma gave all her properties to Rosanna, 1st defendant, under
adoption deed (Ex.B-1 dated 13.11.1942) and she had no right to execute the gift
deeds. In fact in the earlier cross examination as discussed supra, he admitted
Ex.A-7 gift deed dated 15.06.1959 executed by Narayanamma with his consent and
the suggestion goes contrary to it. In the further cross-examination, he
deposed that he denied the suggestion that out of Narayanamma's properties shown
in the declaration by Rosanna the surplus land was taken by Government by paying
him compensation and he does not know when any extent of Narayanamma was
acquired and 1st defendant on behalf of Narayanamma has taken compensation.
Even this suggestion goes against him for not his case that he made any rival
claim under Section 30 of Land Acquisition Act under alleged adoption deed, if
he is the owner and Narayanamma has no right to be paid any compensation for his
taking compensation on her behalf for the land acquired of her in so suggesting,
to say he also acknowledged right of Narayanamma over the properties therefrom.
Coming to the evidence of P.W-2, A.Bheemappa who is the document writer and
scribe of Ex.A-1 gift deed dated 13.04.1973 executed by Narayanamma in favour of
the plaintiff Narsappa, he deposed about her due execution and his scribing at
her instructions in the presence of attestors and after he scribed the original
after noted the instructions in a paper about the particulars to scribe the
document and after scribing the original document and read over the contents to
executant Narayanamma and attestors, she admitted the contents as correct and
affixed her left thumb impression and attestors present saw the execution and
her putting thumb impression, attested the document in her presence and she was
hale and healthy at the time of execution and he handed over the original
document to the executant Narayanamma and she caused to register before Sub-
Registrar, Guntakal. He deposed that he is a licenced document writer for more
than 30 to 40 years though he cannot giving licence number as on the date of
Ex.A-1 and again he gave his licence particulars of then licence No.5/1972 which
he has obtained in the year,1972. He deposed that he executed by then about
1,000 to 2,000 documents though he cannot give details that to whom he wrote,
what nature of document he deposed that on that day Ex.A-1 was the only document
executed by him for said Narayanamma and about 4 or 5 years thereafter
Narayanamma stated died and he saw Narayanamma at the time of execution and not
before or later and he believed her as Narayanamma from her say as Narayanamma
and she did not bring any documents for executing Ex.A-1 and to say how much
land she gifted under Ex.A-1 he has to verify the document. He denied the
suggestion Narayanamma was having defective eye sight and defective hearing. He
deposed that stamps were purchased by Narayanamma of which he scribed Ex.A-1
gift at the warandah of Sub-Registrar's Office at Guntakal after the stamps
purchased by her from one Lakshmidayamma there in her name for the property
valued worth Rs.15,000/- and on his calculation of stamp worth Rs.450/- he
deposed that both the attestors of Ex.A-1 belong to Chayapuram and Narayanamma
and the attestors came from that village. He deposed that his licence was
suspended about one month before giving evidence on the ground of issued receipt
for excess amount for scribing document, than prescribed amount later it was
restored and he denied the suggestion of frequently his licence was under
suspension for such causes or with the assistance of 1st plaintiff Narsappa and
the attestors and himself, the document Ex.A-1 was corrected and he is deposing
falsehood. There is no denial of the thumb impression of Narayanamma muchless
disputing not that of her that execution before the Sub-Registrar by same
person. Narayanamma in her life time not even disputed even she was alive about
6 years after execution of the document as discussed supra. She herself filed
the suit along with 2nd plaintiff and reiterating the gift deeds therein.
Thereby above cross-examination no way shatters the same. In fact, in his
written statement as 1st defendant Rosanna contended particularly at para-4 that
the gift is not true. Execution of the gift by Narayanamma voluntary is not
true that she was aged about 75 years old by then and mentally not capable of
taking care of herself and taking advantage of her week mental and physical
condition, the 1st defendant (instead of 1st plaintiff to so mention) seems to
have played fraud and might have obtained the gift deed and in any event
Narayanamma has not sole and absolute owner of the property as on the date of
gift and is thereby not valid and enforceable. It is not even stated that
Narayanamma has no title because she parted with all her properties under
alleged adoption deed of Ex.B-1 dated 13.11.1942. It is not even denied the
thumb impression of her and the gift deed and attestation but for saying her
mental condition was not fit for executing. There is no positive evidence on it
regarding her infirm mental stage. Any evidence in cross-examination of P.W-1
of she was having some problem of eye sight and hearing, no way a bar to the
execution of document muchless to assume any mental condition is weak or not
stable muchless to doubt about her capacity to execute gift deed. The fact that
even later to the execution of gift deed by reiterating it she filed the suit in
O.S. No.274 of 1973 itself is sufficient to say the gift executed by her
voluntarily she reiterated it in her pleading she was in fit state of mind, hale
and healthy. In fact one of the attestors (to the document Ex.A-1 gift deed
dated 13.04.1973) was examined as P.W-1 by name T.Pullayya not in dispute. In
proof of the document and in the suit for injunction covered by the Judgment
based on plea regarding the Ex.A-1 gift deed also in the plaint para-5 besides
Ex.A-7 gift deed in the plaint para-4 and there is no specific denial of
competency and state of mind for execution of the gift deed and genuineness of
the gift deeds but for to say she was not the sole owner to execute the gift
deeds. In this regard as discussed supra, she was not the original owner as by
the date of alleged adoption, her mother Mangamma was alive as per the evidence
on record of O.S. No.274 of 1973 from his say as D.W-5 apart from his witnesses
D.Ws 1 to 4 of Mangamma mother of Narayanamma died in or around 1948-49 which is
six years later the date of Ex.B-1 dated 13.11.1942 and by then thus, she has no
property to convey even to rely on Ex.B-1 recital as what she could succeeded
was only after death of her mother; apart from what is discussed supra of said
recitals in Ex.B-1, despite any property of Narayanamma owned and possessed by
them including from any proof of her mother died prior to that, was not conveyed
and title passed under Ex.B-1.
28) Now, coming to the evidence of 1st defendant as D.W-1 regarding the
allegation of Narayanamma's husband Rangappa, no other than his father
Pullayya's brother was went as illatum son-in-law to his mother-in-law's house
and enjoying the properties of his late father-in-law Balappa as illatum son-in-
law along with his wife Narayanamma, that does not mean there was no any illatum
adoption as discussed supra. Balappa died in or around 1920 left behind him his
son Chandrappa and two daughters and there was nothing to bring any son-in-law
in adoption as illatum son-in-law with pre-marital agreement to his one of the
two daughters Narayanamma. Apart from it Chandrappa died un-married in or
around 1928-29 and when such is the case Mangamma whose son pre-deceased her and
whose husband pre-deceased her and her son was having two daughters Pullamma and
Narayanamma and when Pullamma got son and daughter i.e., Narsappa besides
daughter as Dohitrudu to Mangamma, there was nothing to bring any illatum son-
in-law.
29) As per the settled expressions discussed in the Judgments in A.S. No.119 of
1979 covered by Ex.A-2 for illatum adoption there must be pre-marital
arrangement to the daughter i.e., not even the case between Narayanamma and
Rangappa for the marriage to perform there was any such agreement of validate
apart from the fact of Chadnrappa was alive even by the time of their marriage
besides Naryanamma's another married sister Pullamma. There is no evidence
worth regarding the alleged illatum adoption from the material on record and the
evidence of so called witness among D.Ws 1 to 4 in O.S.No.274 of 1973 that
evidence is quite inconsistent and incredible to rely and there is no any record
in proof of it muchless any mediation in the name of Rangappa even to believe
any arrangement to give half of the property under illatum adoption as a
condition to Rangappa for Rosanna as adopted son in allotting so to claim.
Regarding adoption also there are inconsistent pleas and as discussed supra from
Ex.B-1 document relied on by him it no where shows his alleged adoption by
Rangappa but for by Narayanamma in the life time of Rangappa admittedly in his
saying Rangappa is the one of the attestor to the document. When Rangappa not
taken the adoption, but for alleging from the recitals therein by Narayanamma
who was incompetent, the adoption is invalid so also for no proof of giving of
Rosanna in adoption by his parents had has 6th year which is the pre-requisite
to invalidate the adoption as discussed supra. He also categorically deposed in
his chief examination as D.W-1 of he was at the time of alleged adoption in 1942
aged 6 years and it is also his categorically say of Ex.B-1 adoption deed dated
13.11.1942 executed by Narayanamma only in his favour. It was not even in his
favour from the recitals but for a unilateral document of Narayanamma in so
referring as the said Rosanna was her adopted son, who was incompetent to adopt
when her husband was alive. Regarding Ex.B-2 Lagnapatrika referring him as
adopted son in performing his marriage. Regarding Ex.A-7 gift deed dated
15.06.1959 relied on by him under which he was given 1/6 out of properties of
Narayanamma only by claiming as she was the absolute owner of the properties, to
rely in saying he was referred as adopted son of Narayanamma and also at other
place as adopted son of Rangappa, from the settled law once he wanted to rely on
the document to so say regarding his relationship with Narayanamma as adopted
son, he cannot dispute the document and the gift thereunder their settlement
recitals thereunder as a person want to elect and rely on a document he is to
elect to rely on the document as a whole and not on a piece of recital of his
advantage and to dispute the other piece which appears not to his advantage by
aprobate and reprobate as per the settled expressions of law including from the
latest expression therein of the Apex Court in Karan Kapahi V. M/s.Lalchand P.C.
Trust48 where by referring to the Apex Court expression in Nagubai Ammal V.
B.Sham Rao49 categorically discussed the principle at paras 62 to 69 also by
referring to another expression of the Apex Court in C.Beepathuma V. Velasani
S.Kadambolithaya50 para 17 and 18 in saying doctrine of estoppel place to deny
the other portions of the recitals of an instrument when elected to rely on some
portions of the recitals of the document. Even coming to Exs.B-3 to B-10 tax
receipts referred by him in his evidence in chief. Those are the taxes paid by
acknowledging the ownership of Narayanamma with possession and not in any
independent way and that also establish the ownership of the properties that of
Narayanamma with right and possession that is also substantiated from recitals
of Ex.A-7 settlement deed dated 15.06.1959 and Ex.A-1 settlement deed dated
13.04.1973. Even coming to Ex.B-11 referred by him of transfer of patta in his
name by saying from 10(1) account, his name noted as pattadar. There is no
proceeding validly under law for transfer of patta in his name all of a sudden
to give any sanctity to it and the said revenue entry in 10(1) account no way
takes away the title of the Narayanamma muchless possession and enjoyment nor
confer any title to the said Rosanna (D.W-1) muchless coming in the way of the
enforceability of Ex.A-7 and Ex.A-1 settlement deeds; under which Narayanamma
confer title to the settlees respectively by reserving life interest limited
enjoyment with possession without right of alienation. When such is the case,
the Ex.A-12 to A-14 verification report of land ceiling Tribunal verification
officer, Land Reforms Tribunal, Anantapur order in holding excess land beyond
prescribed holding and Ex.A-14 notice to surrender to the excess land no way
take away the existing right of the settlee under Narayanamma muchless create
any right in favour of Rosanna over the suit schedule properties other than
1/6th share out of suit schedule properties of Narayanamma he was given
undivided under Ex.A-7 gift deed dated 15.06.1959 as discussed supra.
30) Regarding Ex.B-15 plaint, Ex.B-11 written statement of O.S.No.274 of 1973
and Ex.B-17 and Ex.B-18 decree and judgment as well as Ex.A-2 appeal judgment in
A.S.No.119 of 1979 discussed supra there is nothing more there from to favour
the continuation of the 1st defendant Rosanna or from his evidence as D.W-1 to
dispute the title of the 1st plaintiff for half of the suit schedule property in
seeking partition based on Ex.A-1 settlement deed executed by Narayanamma dated
13.04.1973 duly proved. Regarding Ex.B-2 second appeal judgment also same is
discussed supra so also Ex.B-22 relevant portion of written statement of him and
Ex.B-20 paper publication. Independent findings of the 1st appellate Court in
A.S. No.119 of 1979 against O.S. No.274 of 1973 covered by Ex.A-2, the material
on record discussed supra, establishes the 1st plaintiff's title for undivided
half over the plaint schedule property to claim the relief of partition apart
from the other plaintiffs 2 to 4 right over further 1/6th out of plaint schedule
properties, together with 2nd defendant, from remaining 1/6th each belongs to
1st defendant and 3rd defendant respectively as per Ex.A-7 and Ex.A-1
respectively. Even from the chief examination deposition of him referring to
Ex.B-21 judgment in the second appeal in S.A.No.170 of 1982. In his cross-
examination as D.W-1 he deposed that there is no documentary evidence to show
Rangappa went as illatum son-in-law and by that time he was ot even born for
saying anything and he admitted that after death of Balappa, Narayanamma's name
was mutated in the revenue records for the suit properties though he cannot say
how many years after death of Balappa, Narayanamma's name was mutated and as to
Balappa's wife Mangamma's name was never earlier mutated before mutation in name
of Narayanamma. He deposed that the suit schedule properties never stood in the
name of Rangappa and there is no documentary proof to show Rangappa paid any
land revenue or managed any properties or in possession of any of the
properties. He deposed that to his knowledge there are documents to show
Rangappa was the illatum son-in-law of Balappa. He deposed that under Ex.B-1
document executed by Narayanamma alone, adoption taken place and further deposes
that it was on that day a ceremony of giving and taking through a Purohit called
taken place. If such is the case, his claim as discussed supra on alleged
adoption on the previous day of giving and taking took place and the document
executed as an acknowledgement to it on next day is quite inconsistent and
belies said version and there is no credibility to the said version and apart
from the fact that he was hardly 6 years to say anything other than to speak
from his memory at that date as to any ceremony taken place. When the document
itself speaks taking of adoption nowhere speaks the adoption taken was by
Rangappa, husband of Narayanamma, but for by Narayanamma and nowhere speaks
followed by any ceremony muchless giving and taking and when she was incompetent
when her husband was alive even to take besides no proof of giving and thereby
it was invalid even from his saying the recitals are correct and taken so
nowhere create any right muchless over any property thereunder for alleged
adoption it is invalid so also in his referring even subsequently as adopted son
in any Lagnapatrika in performing marriage or in Ex.A-7 settlement deed dated
15.06.1959 that does not validate the adoption apart from nowhere create any
right over the property of the adoptive mother for maternal side for not any
coparcenery property of the father to claim any right by birth subject to proof
of such alleged adoption or to presume any adoption from even subsequent
reference. It is for the reason that in Vaithalingam Mudaliar V. Murugan51.
The recital in Ex.B-1 so called adoption deed no way creates any right even
taken as Persona Designata gift for not a gift with love and affection as
consideration muchless settlement muchless any conveyance even from the recital
of right and enjoyment and title retained with her and said to pass or derive
only after her life time at best to construe as a like bequeath and there are no
such recitals even as observed though on different facts but for application on
the principle to little correlation to the facts by Apex Court in Baby Ammal V.
R52only parents of a child can give and not by alone himself or any one else in
adoption and there is no presumption in favour of adoption in the absence of
evidence of giving or acceptance of any circumstances by which such a
presumption can be supported, though the adoption may have taken place long
before and been acquiesced in by all concerned, an invalid adoption does not per
se destroyed the adoptee's right in his natural family and no estoppel arises in
such a case unless in consequences of adoption the possession of party staying
up especially he denied to his attestation. It is to say presumption cannot be
drawn and even by referring by acquiescence does not give any right in the
absence of proof of giving and taking as an essential ceremony of adoption
performed or any circumstances so to presume strongly any strong circumstances
so to presume from lapse of the time to the date of evidence from the date of
adoption.
31) Even the Apex Court in Madhusudhan Das V. Narayani.B53 at paras 19 and 20
held that a person who seeks to displace succession of property alleging
adoption must discharge the burden lies upon him by proof of the factum of
adoption and its validity, free from all suspicion and so consistent and
probable as to given no information for doubting its truth. For a valid
adoption, the physical act of giving and taking is an essential requisite, a
ceremony imperative in all adoptions, whatever the cost and this requisite is
satisfied in its essence only by the actual delivery and acceptance of the boy,
even though there exists an expression of consent or an executed deed of
adoption, though Datta Homam is not necessarily contemplate in need to adopt a
boy belongs to same Gotra of adoptive father. The trial Court in fact from this
material when came to the right conclusion of there is no valid adoption and in
proof of giving and taking and Ex.A-1 and A-7 are valid and the plaintiff under
Ex.A-1 document got half undivided in the plaint schedule over partition in
order to separate possession besides other plaintiffs for the remaining as
claimed and for profits, for this Court while sitting in appeal as laid down in
the said expression of the Apex Court at para-8 there is nothing to interfere
for the reason that when there is a conflict of oral evidence on any matter in
issue its resolution turns upon the credibility of the witnesses, the general
rule is that the appellate Court should permit the findings of fact rendered by
the trial Court to prevail unless it clearly appears that some special feature
about the evidence of a particular witness has escaped the notice of the trial
Court or there is sufficient balance of improbable to displace its information
as to where the credibility lies.
32) Even coming to D.W-1's cross examination it is quite inconsistent to above
version that the adoption was under the document and the earlier version of the
adoption ceremony taken place on previous day and the further cross examination
version dated 24.02.1994 of two or three days after alleged adoption, the
document Ex.B-1 was executed and registered at Sub-Registrar's Office, Anantapur
and that on 12.11.1942 no ceremonies were performed but either on 10.11.1942 or
11.11.1942 and he does not remember whether he stated in Ex.A-9 deposition in
O.S.No.274 of 1973 that it was on the previous day, the parents of him agreed to
give him in adoption to Narayanamma and Rangappa, when it was the say where was
the time to perform the ceremony and this inconsistent evidence belies. He was
not admitted in his deposition of the suit property Exs.B-8 and B-9 receipts out
of Exs.B-8 to B-10 of the years 1979 to 1984 and even Ex.B-7 receipt of the year
1973 after disputes arose and O.S.No.274 of 1973 filed. D.W-2, Village
Administrative Officer, P.V.Gowd Ex-V.M of Konakandla during 1946 to 1984
claimed his age as 66 years by 1994. It is not believable to say he became a
V.M on 01.06.1946 before completion of 18 years of age from the age he mentioned
apart from his evidence to say through the introduced witness, he could not
depose anything regarding alleged illatum adoption of Rangappa by his father-in-
law Balappa of Chayapuram that his in-laws place is Chayapuram and he knows
Narayanamma and wife Rangappa of Chayapuram and also Rosanna and his natural
father Pullaiah and Rosanna residing at Chayapuram with his adoptive parents.
He speaks regarding possession and enjoyment whereas in Ex.B-17 judgment of O.S.
No.274 of 1973 one D.W-4 was the village officer Veerabhadra Rao and his
evidence is running contrary to the said evidence of Veerabhadra Rao. Even
coming to the land acquired Ac.1-10 cents and compensation paid there is no
record filed and Rosanna as 1st defendant D.W-1 claimed as discussed supra, the
compensation paid to Narayanamma was taken by him on her behalf and thereby D.W-
2 evidence is contra to it cannot be given credence so also regarding excess
land holding and surrender proceedings. Regarding Ex.B-3 to B-10 cist receipts
said to have been issued as discussed supra and cross-examination of D-1, D.W-1
Rosanna also Ex.B-7 to Ex.B-10 are subsequent to filing of O.S. No.274 of 1973 a
post liti document and the other receipts are only in the name of Narayanamma
and paid by Narayanamma and by her on her behalf which occurred no right over
the property and in the cross-examination he deposed that even in the No.10
adangal a post liti document there is no even mention as adopted son for his
cause mutating at the instance of Rosanna alleging based on adoption deed so
mutated and when the adoption deed was of the year 1942. His first time
mutating in 1973 after the litigation started cannot be given credence thereby
his evidence also no improves the case.
33) Thus, so far as the trial Court finding in the judgment impugned in the
appeal concerned when it came to the right conclusion having fresh in mind from
appreciation of evidence on the factual matrix rightly of the plaintiffs are
entitled to partition with separate possession and profits for this Court while
sitting in the appeal there is nothing to interfere. Accordingly point Nos.1 to
3 are answered against the appellant confirming the trial Court's decree and
Judgment and also the mesne profits arrived.
34) Even coming to the impugned revision petition on the quantum of profits
ascertained by the lower Court in the final decree proceedings in I.A.No.467 of
1998 by C.R.P.No.998 of 2002, the commissioner as per the report inspected the
properties covered by the plaint schedule of Ac.35-03 cents in items 1 to 9
which is attached to the preliminary decree and found Ac.15-00 dry land and
Ac.8-00 cultivable wet land and Ac.5-00 shown as waste land even raising pulses
like Bengal Gram by estimated the yield of 3 bags Bengal gram per acre. The
profits realized to the period from 1982 to 1985 three years prior to the suit
and from the date of suit till the date of possession and the lis is
undisputedly pending so far and possession not taken by division by metes and
bunds of the share of 1st plaintiff of 12/24 and other petitioners 2 to 4 of the
final decree petition of each 1/24 which the commissioner arrived at
Rs.1,31,750/- + Rs.10,979/- for each 1/24th share. As per the evidence of 3rd
petitioner as P.W-1 and another person of Chayapuram examined as P.W-2 besides
1st respondent as R.W-1 and another person of Chayapuram as R.W-2 as held by the
lower Court in the final decree profits order impugned in the revision that from
Ex.P-1 to P-9 No.3 adangals of fasali 1398 to 1408, those are cultivated as wet
land under high level canals and it shows the total wet cultivation is more than
19-09 cents in the land of S.Nos.1038D and 1031B ground nut or cotton or the
other commercial crops were raised during fasalis 1398 to 1401 and from 1403,
this extends also under paddy cultivation to say from original cultivation of
Ac.6-55 cents wet land it is more than 10-59 cents from fasali 1401, another
Ac.7-03 cents all in paddy cultivation and the remaining as per the adangals
disclose dry land of Ac.21-81 cents of which Ac.17-37 cents is with ground nut
cultivation and Ac.3-06 cents with coriander and Kusuma of Ac.0-42 cents besides
Jonna these are single crop based on rain fed and in fasali 1403 half of the
extent raised with Bengal gram and raised seasonal crops likewise for fasali
1404 and the other with Jowar or Coriander, Ac.3-40 cents in S.No.1021/D though
referred as waste land is not for crops raised from No.3 adangal from fasali
1398 onwrds like coriander, Bengal gram. Having regard to the above and from
the Exs.P-1 to P-9 supra relates to the years 1988 to 1998 so far as future
profits from the date of suit till 1985-86 till 1987 there is no material
placed. The Commissioner accepted the value of puffed rice at Rs.110/- per bag
and the Commissioner considered the yield of paddy crop at 40 bags per acre and
concluded the net yield around 15 to 20 bags and there from year wise from 1982
to 1987 arrived the income of Rs.33,000/- and 1988-89 and 1989-90 Rs.6,600/-,
1991-92 Rs.6,300/- for the extent above 10 to 11 acres like wise for the year
1992-93 to 1994-95 with little variation and for 1995-96 Rs.7,500/- and from
1996-97 to 2000-01 between Rs.10,000/- to Rs.11,000/- in arriving Rs.1,30,000/-
for the Ac.10-00 and odd and with notional increase of 10% of the value of the
paddy from respective years that all. Apart from it, the lower Court considered
the yield from remaining land of about Ac.23-00 of which part in the cultivation
from the years 1982-83 to 2000-01 in arriving Rs.5,83,200/- by taking the
respective yield and value of the commercial crops. It is thereby the net
amount arrived Rs.7,21,320/- and 12/24th share of 1st petitioner for half
therein and 1/24th share of each petitioners 2 to 4 accordingly therein with
interest at 6% p.a. Thereby, practically against the amount arrived including
from the contentions raised in the grounds of revision for saying the area is
drought hit or with no cultivation in the lands, there is no basic. When the
adangals that can be taken as basis for respondents are the best persons in
possession to speak otherwise by producing any accounts with them of the actual
yield and from what it was sold and net income, which they failed to produce and
from the basis of revenue record showing the estimated yield and the
cultivation, for this Court while sitting in revision, there is no illegality or
irregularity in said impugned order, muchless to reduce either the quantum
arrived or rate of interest. Accordingly the revision is also liable to be
dismissed.
35) In the result, the appeal and revision are dismissed. There is no order as
to costs.
_________________________
Dr. B. SIVA SANKARA RAO, J
Date: 20-03-2014
There is totally nothing about her husband was taking the child in adoption. There is nothing to say, when her husband was alive, under what right she was taken the child in adoption. There is nothing even to say the adopted parents of the boy given the child in adoption. It is not out of context to mention from the material placed on record that said Narayanamma who executed the document Ex.B-1 in her favour being wife of Rangappa stated got the properties from her parents and it is not even for her husband's properties to succeed or to have any right by birth.
Her husband was not even one of the attestors to the document so called adoption document.
It is thus invalid which creates no right to claim as adopted son and even no transfer of rights over her property or putting in possession thereunder the minor boy i.e., the 1st defendant appellant herein.=
Powers of Appellant courts
Apex Court
including Koksingh V. Deokabai6; Gaisi Ram V. Ramji Lal7 and Madan Lal (supra),
that the 1st appellate court is competent to grant relief if finds appropriate
on any facts though that was not granted by the trial Court in rendering
complete justice and prevent to the extent possible scope for further litigation
and to give finality to the lis. It is in spite of non-filing of appeal or
cross-objections with any specific plea, for granting such relief it is within
the power of the appellate Court, subject to the rider that it cannot grant more
relief than what was granted by the trial Court for want of cross-objections
Ranjan Prakash V. Divisional Manager8 and Banarsi (supra).
Not specifically pleaded - Non- framing of issue - Not specifically prayed for alternative relief - still the court can grant relief if evidence is adduced in consciousness =
In Ram
Sarup Gupta Vs. Bishur Narain Inter College10 referring to the constitution
Bench expression in Bhagwati Prasad V.Chandramaul11 and Sheodhari Rai V. Suraj
Prasad Singh12 Trojan and Company V. R M N N Nagappa Chettiar13 that the
pleadings should receive a liberal and not pedantic approach as meant to
ascertain the substance and not form, it only requires the opposite party to
know. Though generally no plea, no evidence can be looked into and for no issue,
no finding can be given; it is not always the static principle from the fact
that even a plea not made specifically from deficiency in pleadings, but if
covered by implication and evidence let in and parties know the case, it can be
looked into and even to give finding no issue framed is of no bar to formulate a
point and decide. Burden of proof in such matters, pales significance as what is
necessary is party shall aware of the plea and let in evidence for the Court to
give finding from the hearing covering the lis but not outside the scope. It
was also held therein that even alternative remedy not pleaded if entitled,
Court can grant it where it is appropriate to do so.
Whether the adoption deed is valid excuted prior to Adoptions and Maintenance Act
Ex.B-1 document further speaks the natural father of the minor boy Rosanna, by
name Pullayya was no other than brother of her husband Rangappa and it further
speaks out of two sons of said Pullayya, this minor boy Rosanna was the eldest.
Leave apart, whether eldest son was to be given in adoption or not, she refers
in the document executed in her favour by styling as an adoption as in future
for the obsequies to her and to her husband a male child is required to adopt
thereby with the consent of their husband as per Hindu Law she adopted the boy
as her adopted son.
Thereby from then this minor boy Rosanna as if her
naturally born son, (naa owrasa putruni vale) her entire property to mean what
the property succeeded from her parents (movable and immovable) this minor boy
Rosanna will enjoy with absolute rights and perform to her and to her husband
the obsequies in future. Hence, this deed of adoption (Dattu Sweekaara
Dastaveju).
In fact her property which she succeeded from her parents shall not
form part of coparcenary property of her husband and the adopted son, even the
adoption is valid, unless she conveys by transfer of her title by proper
document over the property to the so called adopted son, by simply any reference
therein.
If at all there is any expression of intention it was not a transfer
of any right in presendi, for not even a gift or settlement nor it conveys any
meaning to say an ante adoption agreement.
It speaks the intention to take the
property and perform to her and her husband the obsequies in future. If that is
the case, it is virtually a bequeath to take effect after her life time for the
future enjoyment and the future performance of the obligations of obsequies etc.
It is nowhere speaks to whom she executed the document even, but for by
referring to herself in the initial lines while commencing writing of the
document by referring as adopted mother.
It is not even the fact if at all that
he was already taken in adoption muchless by her husband but for by referring
this is the document for adoption.
There is totally nothing about her husband
was taking the child in adoption.
There is nothing to say, when her husband was
alive, under what right she was taken the child in adoption.
There is nothing
even to say the adopted parents of the boy given the child in adoption.
It is
not out of context to mention from the material placed on record that said
Narayanamma who executed the document Ex.B-1 in her favour being wife of
Rangappa stated got the properties from her parents and it is not even for her
husband's properties to succeed or to have any right by birth.
Her husband was
not even one of the attestors to the document so called adoption document.
It
is thus invalid which creates no right to claim as adopted son and even no
transfer of rights over her property or putting in possession thereunder the
minor boy i.e., the 1st defendant appellant herein.
Ascertainment quantum of mesne profits
When the
adangals that can be taken as basis for respondents are the best persons in
possession to speak otherwise by producing any accounts with them of the actual
yield and from what it was sold and net income, which they failed to produce and
from the basis of revenue record showing the estimated yield and the
cultivation, for this Court while sitting in revision, there is no illegality or
irregularity in said impugned order, muchless to reduce either the quantum
arrived or rate of interest.
2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11048
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
APPEAL SUIT No.267 of 1995 and batch
20-03-2014
Kakarla Rosenna and others ....Appellants
Thammineni Narasappa and others.... Respondents
#Kakarla Rosenna....Petitioner
$T.Narasappa and others.... Respondents
Counsel for the Appellants : Sri V.Ravinder Rao & Sri O.Manoher Reddy
Counsel for the Respondents: Sri R.Subba Rao
<Gist :
>Head Note:
? Cases referred:
1. AIR 2003 SC 1989
2. AIR 1963 SC 1516
3. AIR-2001-SC-965
4. (2003(5)-SCC-89)
5. 1975(1)SCC 212
6. AIR-1976-SC-634
7. AIR-1969-SC-1144
8. 2011(8) SCALE 240
9. AIR 1989 SC 193
10. AIR 1987 SC 1242
11. AIR 1966 SC 735,
12. AIR 1954 SC 458
13. AIR 1953 SC 235
14. AIR 1995 SC 167
15. AIR 1988 SC 719(B)
16. 1991 (3) SCC 331
17. 1998(5)-ALD-349
18. 2003(8)-Supreme Today-194 at 196
19. (2009) 3 SCC 287
20. AIR 1984 SC 664
21. (1994) 5 SCC 167
22. 1911 ( 35) Bombay-169
23. 1915(39) Bombay 441
24. AIR 1951 PC 7
25. AIR 1963 SC 185 at 193
26. 1870 (7) Bombay HCAC 153
27. 1869 (12) MIA 350
28. 1909 (36) Cal 824
29. AIR 1961 SC 1302
30. 1906 (28) All. 377
31. AIR 1926 PC 1927
32. AIR 1970 SC 1673
33. 1868(4) MHCR 169 Contd...
34. 1881 (6) Cal. 381
35. AIR 1937 Bombay 169
36. AIR 1939 PC 152
37. AIR 1955 MB 129
38. AIR 1954 Raj. 17
39. AIR 1961 SC 1378
40. 2010(3) Scale 569
41. AIR 1956 SC 593,para 23 page 602
42. AIR 1965 SC 241 at para 17&18
43. AIR 1919 PC 162
44. 1971(1) APLJ-338
45. AIR 1959 (A.P) 360
46. ILR 1914 MADRAS 529
47. 1962(2) SCJ 472
48. 2010(3) SCALE 569
49. AIR 1956 SC 593
50. AIR 1965 (SC) 241
51. ILR 1937 Madras 529
52. (1997)2 SCC 630
53. AIR 1983 (SC) 114
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
APPEAL SUIT No. 267 OF 1995 & C.R.P.No.998 of 2002
COMMON JUDGMENT:
A.S.No.267 of 1995
1) The 1st defendant-Kakarla Rosenna among 3 plaintiffs including Narayanamma
and Ch.Narayana filed this appeal against the four plaintiffs T.Narasappa,
Ch.Narayana Swamy, Ch.Narasimhulu and Ch.Rajendra, aggrieved by the Judgment and
decree dated 23.01.1995 in O.S. No.102 of 1985 on the file of Principal
Subordinate Judge, Anantapur.
C.R.P.No.998 of 2002
1(a) Said 1st defendant in O.S.No.102 of 1985 (being the appellant in A.S.
No.267 of 1995) filed this revision aggrieved by the order in final decree
petition against him in I.A. No.467 of 1998 in O.S. No.102 of 1985 on the file
of Principal Senior Civil Judge, Anantapur.
2) Pending appeal the appellant-1st defendant of the suit Rosanna died and
his L.Rs brought on record as appellants 2 to 4 by name Rangayya, Ananda Kumar
and Vijaya Lakshmi as per orders in A.S.M.P. No.153, dated 18.06.2012 and the
plaintiff T.Narsappa who was 1st respondent to the appeal also died and his L.Rs
brought on record as respondents 7 to 11 by name Narsappa, Ranganna,
Jayanarasimhulu @ Jayanna, Pullamma and Narayanamma as per orders in
C.M.P.No.22508 of 1998 dated 18.08.1999. Said persons also brought on record
during pendency of the final decree petition in I.A. No.467 of 1998 (impugned in
the revision) i.e., the 1st plaintiff T.Narsappa's L.Rs as petitioners 5 to 7
viz., Narayana, Rangappa and Jayanarasimhulu vide orders in I.A. No.273 of 2000
dated 28.08.2000 and also C.Narasimhulu and Pullamma as respondents 4 and 5 vide
orders in I.A. No.72 of 1999 dated 08.03.1999.
3) Since both the matters are interrelated and come out of one and the same
dispute between the parties, both matters are clubbed together and the parties
are being referred to as were arrayed before the trial Court in the original
suit for the sake of convenience.
4) The suit was filed by plaintiffs 1 to 4 seeking partition and separate
possession of the plaintiffs' 5/8th share in the plaint schedule properties by
metes and bounds and for mesne profits for three years prior to suit and
thereafter till the date of possession of their share against the 1st defendant.
The brief averments in the plaintiffs' case are as follows:
4(a) The schedule mentioned property originally belongs to Balappa, who got
married Mangamma, had one son (Chandrappa) and two daughters (Pullamma and
Narayanamma). Balappa died in or around 1920 and after 8 years his son
Chandrappa died unmarried and the schedule mentioned properties devolved on
widow Mangamma, who also died subsequently. Consequent upon the death of
Mangamma, her daughter, sole heir, Narayanamma was the absolute owner of the
property as the other daughter Pullamma also died during the life time of
Mangamma.
(b) Narayanamma, sole heir of Balappa, entered into possession of the
properties. On 15.06.1959 said Narayanamma executed a gift (Ex.A-7) of half
share in favour of Aswarthappa (father of plaintiffs 2 to 4 & 2nd defendant) and
defendants 1 & 3 jointly to be enjoyed by the three branches. The other half
share in the schedule mentioned property, Narayanamma, gifted in favour of the
1st plaintiff reserving her right to enjoy the same during her life time with
limited interest under the gift deed dated 13.04.1973(Ex.A-1). Narayanamma also
executed a lease deed in favour of the 1st plaintiff permitting him to cultivate
the lands. Subsequently Narayanamma also died. Consequent to the death of
Narayanamma, 1st plaintiff became entitled to half share, plaintiffs 2 to 4 and
2nd defendant together are entitled 1/6th share and defendants 1 and 3 each
became entitled to 1/6th share in the schedule properties.
(c) When disputes arose between the parties, during the life time of
Narayanamma, the 1st plaintiff and Narayanamma, filed a suit in O.S. No.274 of
1973 (Ex.B-15-plaint) on the file of District Munsif, Gooty for permanent
injunction against 1st defendant and others from interfering with their
possession and enjoyment and the same was dismissed, vide its Judgment dated
23.04.1979 (Ex.B-17), on the ground that the 1st plaintiff had not made out that
he was in possession and enjoyment of the suit properties. Aggrieved by the
same, the 1st plaintiff filed an appeal in A.S. No.119 of 1979 on the file of
District Judge, Anantapur and the same was also dismissed vide its judgment
dated 24.08.1981 holding that the adoption of the 1st defendant by Narayanamma
and illatom affiliation of Rangappa are not true and the plaintiffs had 1/6th
share in the suit properties and the defendants 1 and 3 are entitled to 1/6th
share in the property.
(d) The 1st defendant also filed O.P. No.218 of 1974 which was later numbered as
a suit in O.S. No.80 of 1977 (Ex.A-3 Plaint) on the file of Subordinate Judge,
Anantapur for declaration of his title to the plaint schedule properties and
also for possession of the properties through Court and for mesne profits and
the same was dismissed for non-prosecution by the plaintiff therein (1st
defendant herein). The 1st defendant is entitled to only 1/6th share in the
suit properties and he is not entitled to any of the properties, however, on the
ground that he had been dispossessed by virtue of an order of injunction in O.S.
No.274 of 1973, he later filed I.A. No.52 of 1979 (Ex.B-19 petition) and took
possession of the same by order dated 05.05.1979 and delivery was recorded on
09.05.1979. Though the 1st plaintiff filed a petition for restitution of
possession, he was not successful on that count.
5. The 1st defendant filed his written statement and the brief averments are as
follows:
5(a) After the death of Balappa, Mangamma took Rangappa as her illatom son-in-
law, by giving him in marriage with Narayanamma, agreeing to give him half a
share in the properties as per custom and usage prevailing in their community
and Rangappa had been living with his wife in his father-in-law's house at
Chayapuram and became the joint owner of the properties along with his wife
Narayanamma. After the death of Mangamma, Narayanamma and Rangappa entered into
the properties as joint owners and adopted the 1st defendant on 13.11.1942
(Ex.B-1) under a registered deed. Since the date of adoption, the 1st defendant
also became a joint owner of the properties along with his parents. Therefore,
after the adoption Narayanamma was not the sole and absolute owner of the
properties and hence she has no right to execute any gift deed and the said gift
deed as stated by the plaintiffs will not confer any rights to the donees and
the gift is valid only to the extent of Narayanamma's share, and even on the
date of the alleged gift deed, said Narayanamma is mentally weak for more than
75 years old and not capable of taking care of herself, that taking advantage of
the same, 1st plaintiff seems to have played fraud on her and might have
obtained the alleged gift deed, which is not valid and enforceable in law.
(b) The suit lands were never in possession and enjoyment of the plaintiffs 2 to
4 or defendants 2 and 3. After the death of Narayanamma, the 1st defendant was
in joint possession and enjoyment of suit properties, became the sole and
absolute owner of the same. The plaintiffs with an intention to grab the
properties, started some disputes by filing a suit in O.S. No.274 of 1973 and
upon the dismissal, filed an appeal in A.S. No.119 of 1977, which was also
dismissed. After filing the suit in O.S. No.274 of 1973, they have obtained an
interim injunction order with which they tried to interfere with the rightful
possession and enjoyment of the 1st defendant. Under those circumstances, the
1st defendant filed O.S.No.80 of 1977 on the file of Sub-Court, Anantapur and as
the injunction was vacated in the previous suit O.S. No.274 of 1973 as it was
dismissed, the 1st defendant did not prosecute the same.
(c) After the death of Narayanamma and Rangappa being the adopted son and sole
and absolute owner of the suit properties, the 1st defendant having possession
and enjoyment of the same, paying land revenue also and no one else paying the
same and hence, neither the plaintiffs nor the other defendants have any right,
title or interest in the suit properties. He got a half share being an adopted
son and on the other half, he got it by inheritance on the death of Rangappa and
Narayanamma.
(d) Since the plaintiffs themselves admitted regarding the prior suit, under
which it has been held that the 1st defendant is in physical possession of the
suit properties in his own right and that the plaintiffs are not in possession
of the same, they cannot be deemed to be in joint possession of the suit
properties and since they did not file said suit for possession or for
partition, but for injunction, this suit is barred under Order II Rule 2 C.P.C.
(d) As far as the mesne profits are concerned, when the 1st defendant was never
in wrongful possession of the suit properties and when the 1st defendant is
enjoying as a rightful owner, that question does not arise. The defendants 2 and
3 are colluding with the plaintiffs and the suit is liable to be dismissed.
6. Basing on the pleadings of both the parties, the trial Court framed the
following issues:-
i. Whether the plaintiffs are entitled for partition and separate possession of
their due share as claimed
Additional issues:
ii. Whether the gift deed dated 13.04.1973 executed by Narayanamma in favour of
the 1st plaintiff is true
iii. Whether the gift deed dated 15.06.1959 executed by Narayanamma in favour of
Aswarthappa, the 1st defendant and 3rd defendant is true
iv. Whether said gift deeds are vitiated by fraud as mentioned by 1st defendant
in para-4 of the written statement
v. Whether Rangappa was the illatom son-in-law of Mangamma as contended by the
1st defendant
vi. Whether the adoption set up by the 1st defendant to Rangappa and Narayanamma
is true, valid and binding on the plaintiffs
vii. Whether Narayanamma was not entitled to all the properties but was entitled
to only a share as contended by the 1st defendant in para 3 of the written
statement
viii. Whether the plaintiffs are entitled to mesne profits
ix. To what relief
7. During the course of trial, the plaintiff as P.Ws-1 and another witness as
P.W-2 were examined on behalf of the plaintiff and marked Exs.A-1 to A-14.
Ex.A-1 is the registration extract of gift deed dated 13.04.1973 executed by
Narayanamma in favour of the 1st plaintiff, Ex.A-2 is the copy of Judgment in
A.S. No.119 of 1979 which was dismissed, Ex.A-3 to A-6 are the copies of plaint,
written statement, judgment and decree respectively in O.S. No.80 of 1977, Ex.A-
7 is the registration extract of gift deed dated 15.06.1959 executed by
Narayanamma in favour of Aswarthappa and others, Exs.A-8 to A-14 are the
relevant portions in the evidence of various witnesses including the 1st
defendant during the course of trial in O.S. No.274 of 1973. On behalf of
defendants the 1st defendant as D.W-1 and another witness as D.W-2 were examined
and marked Exs.B-1 to B-22. Ex.B-1 is registered document dated 13.11.1942
executed by Narayanamma in favour of the 1st defendant, Ex.B-2 is Lagnapatrika
of the 1st defendant, Exs.B-3 to B-10 are the tax receipts, Ex.B-11 is the
transfer of patta, Exs.B-12 to B-14 are the verification report given by the
verification officer of land ceiling tribunal, Anantapur; order passed by
L.R.Tribunal and notice of the L.R.Tribunal respectively. Exs.B-15 to B-19 are
copies of plaint, written statement, judgment and decree respectively in O.S.
No.274 of 1973, Ex.B-20 is the publication in Andhra Prabha dated 05.06.1973,
Ex.B-21 is copy of Judgment of High Court of A.P and Ex.B-22 is the relevant
portion marked in Ex.B-16.
8. After considering the entire evidence of witnesses, documents exhibited by
both parties and after hearing both sides, learned Principal Subordinate Judge,
Anantapur passed preliminary decree on 23.01.1994 holding that the 1st plaintiff
is entitled for 1/24th share, plaintiffs 2 to 4 are entitled for 1/24th each,
1st defendant and 3rd defendant are each entitled for 4/24th share and 2nd
defendant is entitled for 1/24th share in the plaint schedule properties and
also held that the plaintiffs are entitled for mesne profits in respect of their
share in the plaint schedule properties.
9. Aggrieved by the same, the 1st defendant, filed the present appeal contending
that the decree of partition in favour of the plaintiffs' is contrary to law,
weight of evidence and the trial Court having held the appellant has been
validly adopted by Narayanamma by establishing the same vide Ex.B-1 registered
deed, which was also attested by Rangappa, ought to have dismissed the suit as
the 1st defendant is entitled to all the properties as the absolute owner and
the 1st defendant is in continuous possession and enjoyment of all the suit
properties since 13.11.1942 for which mutation in the revenue records has also
been done in his favour. The 1st defendant further contends that the trial
Court ought to have held that Exs.A-1 and A-7 should be invalid as Narayanamma
herself given up her rights in all the suit properties under Ex.B-1 and no
records establishes possession of Narayanamma at any point of time. The 1st
defendant further impugning that merely because no direct evidence after the
lapse of over 75 years could be produced, it does not mean that the plea of 1st
defendant as regards the illatom of Rangappa and Mangamma cannot be believed and
prayed to allow the appeal by setting aside the decree and Judgment dated
23.01.1994 passed in O.S. No.102 of 1985 on the file of Principal Subordinate
Judge, Anantapur.
10. After passing of the decree, pending the appeal, the plaintiffs filed I.A.
No.467 of 1998 in O.S. No.102 of 1985 under Order XX Rule 18 C.P.C seeking a
final decree by appointing a commissioner for demarcation of the schedule
properties in terms of the preliminary decree and for assessment of the mesne
profits of the schedule properties and when the respondents reported no counter,
the learned Principal Senior Civil Judge appointed an Advocate-Commissioner for
demarcation in terms of the preliminary decree for assessment of the mesne
profits and learned Advocate-Commissioner filed his report. Basing on the
report and after considering the entire material on record, the learned
Principal Senior Civil Judge allowed the petition on 13.04.2001 in I.A.No.467 of
1998 in O.S. No.102 of 1985 holding that the legal representatives of the 1st
petitioner are entitled for mesne profits of Rs.3,60,660/- towards their 12/24th
share, petitioners 2 to 4 are entitled to Rs.30,055/- each for their 1/24th
share and the 3rd respondent is entitled to Rs.1,20,220/- towards his 4/24th
share i.e., 1/6th share. The learned Judge further held that the petitioners
are also entitled to 6% interest from the date of the order till the date of
realization over the respective amounts to which they are entitled.
11) Aggrieved by the same, the petitioner-1st defendant, filed C.R.P.No. 998 of
2002 impugning the ascertaining of mesne profits as illegal, improper and unjust
by exceeding jurisdiction, that even the learned Advocate Commissioner had made
a personal inspection and had arrived at Rs.1,64,000/- and odd towards mesne
profits and the learned Judge has absolutely no basis to arrive at the figure of
Rs.7,21,000/- and odd; that the learned Judge ought to have observed that the
entire Anantapur District has been drought hit since over a decade and there has
been absolutely no crop on many lands in the district and the Learned Judge
ought to have seen and follow the report of the Commissioner regarding the
wasteful plants filled upon many lands and prayed to allow the revision by
setting aside the decree and order dated 13.04.2001 passed in I.A. No.467 of
1998 in O.S. No.102 of 1985 on the file of Principal Senior Civil Judge,
Anantapur.
12. During the course of this appeal the sole appellant died and legal
representatives of the appellant-1st defendant were brought on record as
appellants 2 to 4 as per order dated 20.06.2013 in A.S.M.P.No.153 of 2013. The
1st respondent-1st plaintiff also died and legal representatives of the 1st
respondent also brought on record as respondents 7 to 11 vide orders dated
18.08.1999 in C.M.P.No.22508 of 1998.
13. Heard both sides and perused the material on record. In the course of
hearing the appeal, the learned counsel for the appellants reiterated above
contentions in seeking to set aside the trial Court's decree and judgment by
dismissal of the suit claim. Whereas it is the contention of the counsel
representing the respondents that the appeal claim is speculative and baseless
in order to trouble them further, that the trial Court after discussion of the
entire evidence on record by proper appreciation of fact and law came to the
right and reasoned conclusion but for finding on alleged adoption which they can
assail and but for that, for this Court while sitting in appeal, there is
nothing more to interfere, hence, to dismiss the appeal.
14. Now the points that arise for consideration in the appeal are:
1. Whether the 1st plaintiff for half share and the remaining plaintiffs 2 to 4
along with 2nd defendant for 1/6th respectively to the claim of 5/8th share for
remaining said to be entitled by defendants 1 and 3 each 1/6th out of plaint
schedule, entitled to partition with separate possession based on Ex.A-1 to A-7
settlement deeds respectively executed by Narayanamma for the plaint schedule
properties respectively as its owner with possession and enjoyment by creating
right and reserving life interest possession and enjoyment
2. Whether plaintiffs are not entitled to partition and possession of any extent
over the plaint schedule properties from the claim by 1st defendant as adopted
son of Narayanamma and her husband Rangappa ( so called illatum son-in-law of
Mangamma widow of Balappa under caste custom in vogue) under Ex.B-1 adoption
deed and with claim Narayanamma also divested her right over the plaint schedule
properties thereunder and otherwise also from the claim of the 1st defendant
perfected title by adverse possession
3. Whether the trial Court's decree and judgment granting relief of partition
with separate possession and profits is unsustainable and requires interference
by this Court while sitting in appeal and if so to what extent including on the
quantum of profits arrived by the trial Court in the final decree proceedings
impugned in the C.R.P. No.998 of 2002
4. To what result
15. As the points 1 to 3 are interrelated, to avoid repetition of evidence point
wise and for sake of convenience all the points are taken up together to decide
commonly.
16. Before coming to decide the above points 1 to 3 for consideration, it is apt
to state the settled position of law in dealing with appreciation of the
evidence by the appellate Courts and powers of the appellate Court that:
16(a) As per Banarsi Vs.Ramphal1 and Pannalal V. State of Bombay2 (5 judges
bench), the 1st appellate Court must re-appreciate (appreciate afresh) the
entire evidence in giving its findings supported by reasons as to decide the lis
and therefrom to find how far the decision of the trial court on any of its
findings and conclusions are correct or incorrect, including for confirmation or
reversal of said findings of the trial Court and the appellate Court for that
is conferred with powers of width amplitude under Order XLI Rule 22,24 and 33 so
as to do complete justice between the parties and such power is unfettered to
make whatever order it thinks fit, even between co-respondents, for ordinarily
cross-objections between co-respondents they do not prefer. It is also as per
Santosh Hazari V. Purushottam Tiwari3 and Madan Lal V. Yoga Bai4, and Harihar
Prasad Singh V. Balmiki Prasad Singh5, that in Civil appeals, particularly in
first appeal, the appreciation of evidence is at large like appreciation of
evidence in a suit, more particularly from Order XLI, Rule 33 and 24 C.P.C. No
doubt, the burden of showing that the judgment or even a finding therein under a
challenge in appeal is wrong or incorrect either wholly or in part lies on the
appellant and same is also the proposition in the course of the cross-objections
as the cross-objectors are at par with appellants so far as their contentions in
the cross-objections concerned, in the course of the cross-objections in
shifting the burden on them, from hearing the main appeal. Coming to the powers
of the 1st appellate Court in this regard concerned, more particularly from
Order XLI, Rule 33 and 24 C.P.C. and from several expressions of the Apex Court
including Koksingh V. Deokabai6; Gaisi Ram V. Ramji Lal7 and Madan Lal (supra),
that the 1st appellate court is competent to grant relief if finds appropriate
on any facts though that was not granted by the trial Court in rendering
complete justice and prevent to the extent possible scope for further litigation
and to give finality to the lis. It is in spite of non-filing of appeal or
cross-objections with any specific plea, for granting such relief it is within
the power of the appellate Court, subject to the rider that it cannot grant more
relief than what was granted by the trial Court for want of cross-objections
Ranjan Prakash V. Divisional Manager8 and Banarsi (supra). It is needless to
say the 1st appellate Court desires to reverse the judgment and decree of lower
Court, it should discuss the findings and set aside those which are
unsustainable either on fact or on law.
16(b) It is also the well-settled proposition of law from S.B. Noronal V. Prem
Kundi9 that, pleadings are not statutes and legalism is not verbatim. Common
sense should not be kept in cold storage, when pleadings are construed. In Ram
Sarup Gupta Vs. Bishur Narain Inter College10 referring to the constitution
Bench expression in Bhagwati Prasad V.Chandramaul11 and Sheodhari Rai V. Suraj
Prasad Singh12 Trojan and Company V. R M N N Nagappa Chettiar13 that the
pleadings should receive a liberal and not pedantic approach as meant to
ascertain the substance and not form, it only requires the opposite party to
know. Though generally no plea, no evidence can be looked into and for no issue,
no finding can be given; it is not always the static principle from the fact
that even a plea not made specifically from deficiency in pleadings, but if
covered by implication and evidence let in and parties know the case, it can be
looked into and even to give finding no issue framed is of no bar to formulate a
point and decide. Burden of proof in such matters, pales significance as what is
necessary is party shall aware of the plea and let in evidence for the Court to
give finding from the hearing covering the lis but not outside the scope. It
was also held therein that even alternative remedy not pleaded if entitled,
Court can grant it where it is appropriate to do so. In Balasankar Vs. Charity
Commissioner, Gujarat14 at para-19-it was held that, burden of proof pales
significance when both parties adduced evidence and it is the duty of the court
to appreciate the entire evidence adduced by both sides in deciding the lis;
also on the aspect as to party proved in possession of best evidence is bound to
produce the same to throw light on the lis and to unfold any truth and thereby
cannot take shelter on the abstract doctrine of burden of proof saying burden
not on him to prove by filing the same, as laid down in NIC vs. Jugal Kishore15,
and in Lakhan Sao Vs. Dharam Chowdhary16.
16(c) It was also laid down in this regard that, the appreciation of evidence is
no doubt from experience and knowledge of human affairs depending upon facts and
circumstances of each case and regard had to the credibility of the witness,
probative value of the documents, lapse of time if any in proof of the events
and occurrence for drawing inferences, from consistency to the material on
record to draw wherever required the necessary inferences and conclusions from
the broad probabilities preponderance from the over all view of entire case to
judge as to any fact is proved or not proved or disproved. Coming to the proof
of facts out of the facts in issue to the extent of relevant facts concerned,
the above expression discussed what is meant by proved, not proved or disproved
with reference to Section 3 of the Evidence Act. In N.K.Somani Vs., Punam
Somani17, also the scope as to what is the difference between proved, not proved
and disproved was discussed.
16(d) In RVEE Gounder Vs., RVS Temple18 case at paras 25 & 26, the Apex Court
discussed that, in civil cases the proof is by preponderance of probabilities
for including in suits relating to ejectment or declaration of title or for
possession; and the onus shifts from initial burden on the plaintiffs if able to
establish from preponderance of probabilities for entitlement, on the defendant
to rebut the same including with specific claim on their part if any. It is in
explaining the earlier propositions of law that, in a suit for ejectment,
plaintiff shall win or lose his case only on his own strength principle, since
it does not mean the onus of proof is static and always on the plaintiff or it
shall never shifts on the defendant even if the plaintiff is able to establish
his case from preponderance of the probability as to what is meant by proved,
not proved or disproved required for the above expressions with reference to
Section 3 of Evidence Act without going into the other components of "may
presume, shall presume and conclusive proof", from the very definition, proved
and disproved to say not proved is when it is neither proved nor disproved. It
requires considering the matters before the Court on any fact for either
believes it to exist or does not exist (which is by direct evidence), or
considers its existence so probable that a prudent man ought, under the
circumstance of a particular case to act upon supposition that it exists or it
does not exist( which is by circumstantial evidence). At para-25 of the
judgment, the Apex Court clearly held that in a suit for ejectment once
plaintiff has been able to create a high degree of probability so as to shift
the onus on the defendant, it is for the defendant to discharge his onus and in
the absence there of, the burden of proof lies on the plaintiff shall be held to
have been discharged so as to prove the plaintiff's title.
16(e) Coming to the law on interpretation of deeds and documents in i). Narendra
Gopal Vs. Rajat Vidhyardhi19 para-32 (cl.3) it was held that, in appreciating
the documents of unilateral dispositions and testamentary dispositions(wills),
the true intention of the testator (executant) has to be gathered, not by
attaching importance to isolated expressions but by reading the document as a
whole. The intention of the testator must be ascertained not only from the
words used but also from surrounding circumstances. The court will put itself in
the armchair of the executant/testator. (ii). In V.S.Talwar Vs. Premchandra20 at
para-7 it was held that in construing instruments court must have regard not
only to the presumed intention of the parties but also to the meaning of the
words which they have used. (iii). In Hind Plastics Vs. Collector of Customs21
at para-17 it was held that, every instrument has to be so interpreted as to
accord with the intention of its maker having regard to the language used.
Though one cannot ignore actual words used and go after the supposed intention
of maker, since that would amount to entering the arena of speculation, but all
the same said principle is unexceptionable.
16(f) It is also just to have a glimpse on the Hindu Un-codified Law relating to
adoption as on the date of adoption, which was prior to Hindu Adoption
Maintenance Act, 1956 came into force.
As per Mulla on Principles of Hindu Law, 20th Edition (Lexis Nexis Butterworth
Wadhwa, Nagapur revised by S.A.Desai, Volume-I (2006-2007) chapter 23 from pages
771 to 848 at page 772 para 444, the objects of adoption are stated of two
fold:- Firstly of religious, to secure spiritual benefit to the adopter and to
his ancestors by having a a son for the purpose of offering funereal cakes and
libations of waters to the soul of adopter and his ancestors. The second is
secular, to secure an heir and perpetuate the adopter's name.
By referring to Sitaram V. Harihar22, Balagangadhar Tilak V. Srinivas23 and
subsequent expression of the privy council24 the Supreme Court in Chandra Sekhar
V. Kulandaivelu25 observed that the validity of the adoption is to be determined
by spiritually rather than temporal considerations and that devolution of
property is only of secondary importance. In Sitaram (supra), it was observed
that when a Hindu gives a boy in adoption, his act be according to the Hindu
Sastras, in the nature of sacred gift voluntarily made and as per Manu that to
be confirmed by pouring water and it is at par with performing a daughter's
marriage by Kanyadan as both are gifts for religious and secular purposes. In
para 445 of Mulla supra, page 773 the requirements of valid adoption stated that
no adoption is valid unless the person adopted is capable for taking in adoption
and the person giving in adoption is capable in giving adoption and the person
adopts is capable to taken in adoption and the adoption is to be completed by
actually giving and taking irrespective of the ceremony called Datta Homam
performance is essential for validity of adoption or not. In para 446 of Mulla
supra, pages 773 and 774 it was observed that, every male may adopt if he is
competent and a wife also can adopt to her husband. However, a wife cannot
adopt a male without having an express consent from her husband it was by
referring to expression in Narayan V. Nana26 saying it is only after death of
the husband the wife may adopt in certain parts of India, only if he has
expressly authorized her to adopt and in other parts even without such
authority. However, in no case can a wife or a widow adopt a son to herself,
the adoption must be made to her husband otherwise invalid and it confers no
legal rights upon person adopted vide decision Chowdary Pudan Singh V. Koer
Oodey Singh27 and Narendra V. Dina Nath28. The Supreme Court by referring to
the same in Kasturi V. Ponnammal29 held that if the adoption made by husband in
his life time, his wife would join him and being known as adopted mother.
However, by that it is not an adoption by the wife to herself but the adoption
is to the husband. Therefrom a Hindu may adopt or deligate a power to adopt to
his wife in writing in his life time for her to adopt after him.
17. From the above principles of law laid down in the expressions, coming to the
decision on the facts in dispute covered by the points 1 to 3 for consideration,
17(a) The so called adoption dated 13.11.1942 covered by Ex.B-1 document is in
dispute. The recital speaks that the person to be adopted by name Rosanna was
the natural son of one Kakarla Pullanna @ Pullayya of the village Chayapuram and
the person that was taken in adoption by referring as Dattutalli since minor
represented by her as Kakarla Narayanamma, W/o.Rangappa of the same village and
the document referred as adoption deed speaks that it is she Kakarla
Narayanamma, W/o.Rangappa executed the document as adoption deed only in her
favour. It is not even a document executed by natural parents to the adopted
parents or even otherwise by referring therein any giving and taking of the boy
in proof of the factum of adoption. It is practically a unilateral document
which is not contemplated for an adoption deed. Apart from it, the contents
speak that she was by then aged only 45 years and there is nothing to say her
husband was by then no more or she was a widow by then and if so she was
authorized by her husband in his life time to enable her to adopt by anything in
writing. She speaks her husband was by then even alive there and for they have
no issues she has choosen to adopt. In fact Ex.A-1 gift deed dated 13.04.1973
executed by her speaks that husband of Narayanamma only died in the year 1972.
Ex.B-1 document further speaks the natural father of the minor boy Rosanna, by
name Pullayya was no other than brother of her husband Rangappa and it further
speaks out of two sons of said Pullayya, this minor boy Rosanna was the eldest.
Leave apart, whether eldest son was to be given in adoption or not, she refers
in the document executed in her favour by styling as an adoption as in future
for the obsequies to her and to her husband a male child is required to adopt
thereby with the consent of their husband as per Hindu Law she adopted the boy
as her adopted son. Thereby from then this minor boy Rosanna as if her
naturally born son, (naa owrasa putruni vale) her entire property to mean what
the property succeeded from her parents (movable and immovable) this minor boy
Rosanna will enjoy with absolute rights and perform to her and to her husband
the obsequies in future. Hence, this deed of adoption (Dattu Sweekaara
Dastaveju). In fact her property which she succeeded from her parents shall not
form part of coparcenary property of her husband and the adopted son, even the
adoption is valid, unless she conveys by transfer of her title by proper
document over the property to the so called adopted son, by simply any reference
therein. If at all there is any expression of intention it was not a transfer
of any right in presendi, for not even a gift or settlement nor it conveys any
meaning to say an ante adoption agreement. It speaks the intention to take the
property and perform to her and her husband the obsequies in future. If that is
the case, it is virtually a bequeath to take effect after her life time for the
future enjoyment and the future performance of the obligations of obsequies etc.
It is nowhere speaks to whom she executed the document even, but for by
referring to herself in the initial lines while commencing writing of the
document by referring as adopted mother. It is not even the fact if at all that
he was already taken in adoption muchless by her husband but for by referring
this is the document for adoption. There is totally nothing about her husband
was taking the child in adoption. There is nothing to say, when her husband was
alive, under what right she was taken the child in adoption. There is nothing
even to say the adopted parents of the boy given the child in adoption. It is
not out of context to mention from the material placed on record that said
Narayanamma who executed the document Ex.B-1 in her favour being wife of
Rangappa stated got the properties from her parents and it is not even for her
husband's properties to succeed or to have any right by birth. Her husband was
not even one of the attestors to the document so called adoption document. It
is thus invalid which creates no right to claim as adopted son and even no
transfer of rights over her property or putting in possession thereunder the
minor boy i.e., the 1st defendant appellant herein.
17(b) Narayanamma being the owner of the properties and there is nothing even to
say her husband was taken as illatum son-in-law, muchless as per any custom to
so say prevailing, muchless he was given any right in the property or as joint
owner thereunder with others or thereby the so called son to be adopted will get
any right thereunder muchless by birth by treating as coparcenary property, even
to give any credence to the contention of the 1st defendant. Narayanamma while
so enjoying as absolute owner she gifted the properties. A perusal of Ex.A-1
registered gift deed executed by said Narayanamma in favour of the 1st plaintiff
referring that her husband died intestate left behind her 7 months before
execution of Ex.A-1 deed dated 13.04.1973 (to say the husband of Narayanamma
only died in the year 1972) and was alive by the time of so called so called
Ex.B-1 adoption deed dated 13.11.1942. Once again it is to say there from that
it is an invalid document as when her husband was alive by the time of so called
Ex.B-1 adoption deed dated 13.11.1942 and as such she was not having any right
in her husband's life time to adopt, muchless even by referring with his
consent. The adoption by written consent of the husband is conferred to the
widow and not in the lifetime of the husband. When it is not even a document
executed by the natural parents of the minor boy in proof of adoption
acknowledging their giving and her taking. Without giving which is a pre-
requisite for taking, the question of taking when does not arise, can the
recital in the document gives life to the adoption muchless to say there is
giving for said recital of taking that too when it is not an acknowledgement of
a past transaction of earlier oral adoption but for from recital speaks as if it
is the deed of adoption a contemporaneous document to the alleged adoption. The
recitals in the document are also silent as to what were the ceremonies observed
for the adoption to say there was adoption. Without which, a mere recital no
way gives life muchless sanctity to say adoption. From this factual background
to the claim of adoption allegedly dated 13.11.1942 executed on the stamps
purchased in her name on that day and registered on that day. Even to say out
of the four attestors of the document, one Kakarla Ranganna, S/o.Subbanna and
the 4th one Kakarla Pullayya was the husband of Narayanamma and his brother-cum-
natural father of Rosanna was not even correlating for father's name of Pullayya
not even mentioned either at the attestor's column like for Ranganna or in the
recitals. In this regard, as per Para 448, page 776 of Mulla supra, it is
categorically stated referring to the expression in Narayana (supra) that a wife
cannot adopt a son to her husband during her husband's lifetime except with his
express consent. Here as can be seen from Ex.B-1 document there is no express
consent to said Narayanamma by her husband Rangappa to adopt said Rosanna, the
Pullayya's son. It was regarding the written authority referred supra it was
observed in para 453 of Mulla of page 780 that the authority must be in writing
and registered unless it is given under a will vide decision Mottasiddilal V.
Kundanlal30 and Ravath V. Beni Bahadur31 and if the authority is given under a
will, it must be executed in accordance with the formalities required by Section
63 of the Indian Succession Act. As per para 456 of Mulla supra pages 782 and
783 it was observed that even the husband authorized the wife in his life time
to adopt in writing, the widow who is so authorized by her husband may or may
not adopt. It is her discretion for no legal obligation thereby to adopt or not
vide decision Chandra Sekhar (supra) even she had been expressly directed to do
so by her husband in life time. Her rights to her husband's estate not in any
way affect by her omission or refusal to adopt. As per paras 458 and 459 of
Mulla supra, pages 784 to 789 of the parts of Madras State (Presidency) in
particular concerned to the place of Anantapur by then was under erstwhile
Madras composite state, a widow cannot alone adopt without authority from her
husband unless there is express permission in the life time of her husband to
adopt by her or he was separated from her before his death, subject to the
consent of the immediate Sapindas of her husband in the absence of authorization
by her husband to adopt. The decision of the Apex Court in Tahsil Naidu V.
Kulla Naidu32 by referring Chandra Sekhar (supra) speaks that the assent of
Sapindas because of supposed incapacity of a widow for independent action and
not by reason of the affect of adoption of the proprietory rights of the co-
parceners or reversionaries as property considerations are no more paramount in
the case of a undivided family than in the case of divided family. Thus, from
the above even during the life time of the husband the question of her adopting
does not arise to give any validity to the adoption even taken for arguments'
sake there was giving and taking as it is the husband alone that has to adopt at
best by joining the wife with him to adopt and not by wife by saying with any
consent of husband when he is alive. Coming to the competency of persons to
give in adoption concerned as per para 471 of Mulla page 808 the person who can
lawfully given a boy in adoption are his father and mother. Even in the Ex.B-1
deed apart from Narayanamma's husband Rangappa alive and she has no right to
adopt, the so called minor boy Rosanna allegedly adopted concerned, the mother's
name of minor boy not even referred but only his father's name as natural son of
Pullayya @ Pullanna and there is nothing even to say, parents given the boy in
adoption and therefrom the adoption was accepted by taken the boy. Therefrom it
is to say the so called adoption under Ex.B-1 is invalid under law so far as
giving and taking of the said minor boy Rosanna concerned. Under Para 447 of
Mulla supra from pages 810 to 814 regarding the person to be adopted it speaks
the person to be adopted is a male unless there is custom to adopt female and
must belong to same caste of adopting father and must not be within the
prohibited degrees of relationship in the absence of any special custom so to
establish and giving to the ceremonies of adoption as per paras 485 to 489 of
Mulla supra of pages 817 to 821, there must be a physical act of giving and
receiving with an intent to transfer the boy from one family to other family,
Datta Homam and any other minor ceremonies and of which the physical act of
giving and receiving of essentialities though not Datta Homam particularly of
the Madras area vide decision Singamma33 and other minor ceremonies and the
physical act of giving and receiving absolutely necessary to the validity of
adoption is not only of in all casts of Hindus including Sudras and the law does
not accept any substitute for the ceremony and in the absence of the ceremony
mere expression of consent or the execution of a day of adoption and it is
registered, but not accompanied by actual delivery of the boy does not operate
as valid adoption - vide decision Shoshinath V. Krishna Sundari34 valid in
several other expressions including Neeleva V. Gurshiddappa35, Biradhmal V.
Prabhavathi36, Permanand V. Laxminarain37, and Bujandas V. Nanurain38. It was
observed further that two concepts of giving and taking in adoption there should
be some overt act necessary to signify the delivery of the boy from one family
to the other though no particular form is prescribed for the ceremony when the
law requires the natural father should give the adoptive boy and adoptive parent
should receive him. The said ceremony of giving and taking irrespective of the
nature of the ceremony in proof of it, should be necessarily there vide decision
Laxman Singh V. Rupkanwar39. It is therefrom the result of adoption (subject to
proof of the essential ceremony of giving and taking by any specified overt act
necessary) the adoption has the affect of transferring the adopted from his
natural family into the adoptive family to confer on the adoptee same rights and
privileges of the family of the adopter as legitimate son but for restriction of
marriage within the prohibited degrees of relationship. From very recitals of
Ex.B-1 placed reliance on by the 1st defendant to the suit in claiming adoption
the so called adopted mother Narayanamma when her husband Rangappa was alive has
no right to adopt and there is nothing to say the so called adopted by Rosanna's
parents given the boy in adoption and the same was accepted by Rangappa and
Narayanamma as adoptive parents to validate. Thus, Ex.B-1 does not give any
right to the claim of the alleged adoption is validly made thereunder. Coming
to the other recital in the document that thereby in future to perform the
obsequies to her and to her husband as natural son and to enjoy the property of
her which is succeeded by her parents with absolute rights concerned it is not a
persona designata confirmation of right but by referring to the right to the
adopted son and very adoption since invalid no rights accrue thereunder apart
from nothing to say any gift of the property or of title from the said stray
sentence muchless to consider as will to give any life to the recital to the
document to the title thereunder. From this background the other important
document to be appreciated is Ex.A-7 gift/settlement deed executed by
Narayanamma dated 15.06.1959 registered document No.745/59. The recitals
speaking that it was executed jointly in favour of (1) Aswarthappa (father of
the plaintiffs 2 to 4 & D-2), (2) Narayana @ Narayanappa (3rd defendant) (3)
Kakarla Rangappa's son, (adopted Rosanna) i.e., the 1st defendant by referring
her as Kakarla Narayanamma W/o.Rangappa and daughter of Balappa and the recitals
speak that said Aswarthappa and Narayana are her sister Pullamma's daughter's
sons and thereby also grand sons to her by that relation and the other person
Rosanna is her adopted son. Here also she referred as (Naa Dattu Kumarudu) and
not adopted son of her husband and of that all the three persons she performed
marriages and attending their welfare and thereby out of love and affection
towards they all out of the property described in the schedule belongs to her
she has given to the three persons equally out of half of her interest by
settlement, so that all the three have to take possession of after the life time
of her husband and herself and to enjoy with rights. It is to say right is
conferred and possession is postponed by reserving life interest and possession
in the life time of her husband and herself and she described without the
properties succeeded from her husband Balappa in saying properties of her and
those are in possession and enjoyment with absolute rights. The document no
doubt further speaks that on 13.11.1942 (under Ex.B-1) she and her husband taken
said Rosanna has brought adopted son and with his consent also thereby out of
her properties in the undivided half share she also jointly execute the document
in favour of the three. It is important to note that from saying she or her
husband or by both taken said Rosanna in adoption on 13.11.1942, it does not
give life to the adoption when there is no valid adoption by giving by the
natural parents of the boy and taking by her husband to adopt as discussed supra
from Ex.B-1 and the Ex.B-1 recitals of her giving any properties to her son
after life time of her husband also no way have any sanctity to create any right
thereunder Ex.B-1 as discussed supra and as such even from this reference no
rights created over the properties of her by the executant of Ex.A-7 settlement
deed dated 15.06.1959 by name Narayanamma, W/o.Rangappa who has also alive by
then and it is in fact referring his consent also for the settlement of her
undivided half of the property jointly in favour of the three persons which
include himself. Here there is a doctrine of election if at all he also to make
any claim under so called adoption but of conferring of any right over the
property of her not to rely on Ex.A-7 rather to approbate and reprobate. Coming
to said doctrine of election, it is well laid down in Karuna Kapali Vs.M/s
Lalchand PC Trust40 that he who accepts a benefit under a deed or will or other
instrument, must adopt the whole contents of the instrument, must confirm to all
its provisions and renounce all rights that are inconsistent with it. Election
is obligation imposed upon a party by Courts of equity to choose between two
inconsistent or alternate rights or claims in cases where there is a clear
intention of the person from whom he derives the one, that he should not enjoy
both. Every case of election therefore, presupposes plurality of rights, with
an intention of the party who has a right to control one or both, that one is
substitute for others. The party who is to take has a choice, but he cannot
enjoy the benefit of both as laid down in Streatfield Vs.Streat field and
explained by the three judge Bench in Nagubai Ammal Vs.B.shyam Rao41 that the
doctrine of election is not however confined to instruments. A person cannot say
at a time that a transaction is valid and thereby obtained some advantage, to
which he could only be entitled on the footing that it is valid and then turned
round and say it is void for the purpose of securing some other advantage, to
approbate and reprobate the transaction. In Halsbury's laws of England Vol.13,
page: 454 para 572, the principle has been described as species of estoppels.
The said principle is also been accepted in C.Bwepathuma Vs.Velasine S.Kadamboli
phaya42.
17(c) Even coming to Ex.B-2 Lagna Patrika of the marriage of the 1st defendant
referred in his evidence as D.W-1 in chief, it no way improves muchless deviate
to the said confusion as Ex.A-7 settlement deed dated 15.06.1959 itself speaks
Narayanamma and her husband Rangappa performed the marriages of Aswarthappa,
Narayana (father of plaintiffs 2 to 4 and D-3) but also of the 1st defendant
Rosanna by styling as adopted son. Even Ex.A-7 described as discussed above
referring him as adopted son so also Ex.B-1 but as discussed supra, there is no
valid adoption by giving and taking and there is no valid adoption by
incompetency of Narayanamma during life time of her husband to take adoption and
even Rosanna was the eldest son though not only son by then to his parents.
Once there is no valid adoption and Ex.B-1 does not give any right to claim as
adopted son muchless to claim any property thereunder Narayanamma as discussed
supra and subsequently Narayanamma while considering the properties in her own
executed Ex.A-7 settlement deed dated 15.06.1959 discussed supra giving it the
properties of her half share undividedly to Aswarthappa, Narayana and Rosanna
(D.W-1 1st defendant) and he was not even minor by then is not in dispute, he
did not chose to issue any notice questioning the said document muchless filed
any suit immediately after Ex.A-7 dated 15.06.1959 if at all aggrieved by the
dispossessions made by Narayanamma therein, he cannot say that he was adopted by
Rangappa and Narayanamma or he was given in adoption by his parents to Rangappa
and Narayanamma or he got any rights or the same is acknowledged in Ex.B-1 to
substantiate by Ex.B-1 or he was given any rights over entire properties under
Ex.B-1. The fact that 1st defendant as D.W-1 claimed his age at the time of
giving his evidence in 1993 of 58 years show that he was born in or around 1935
to say Ex.B-1 deed of 13.11.1942 was after completing his 6 years of age while
running 7th year and it is also his evidence in chief as D.W-1 that he was about
6 years old by the time of Ex.B-1. It is to say and born in 1935 or so he was
by the date of Ex.A-7 dated 15.06.1959 was about 34 years and Ex.A-7 also
referring his consent for the settlement. When he wants to rely Ex.A-7 to take
advantage of referring therein as adopted son even, he cannot ignore the other
part of the document referring he consented for giving the property to the three
persons thereunder to say he elected for the same and waived his right to
dispute the same, if not estopped by his conduct for so disputing. From this
background coming to the other document Ex.A-1 settlement deed dated 13.04.1973
executed by Narayanamma in favour of the 1st plaintiff in the suit, the
remaining undivided half of the property save the other half Ex.A-7 settlement
deed dated 15.06.1959. The recitals of Ex.A-7 speak that it was executed in
favour of T.Narsappa, S/o.Peda Rangappa i.e., Narayanamma's sister Pullamma's
son Narsappa first plaintiff in the suit. It also refers said relationship and
thereby being sister's son is like her son and that they have no issues, that
the settlee was also assisting her and her husband in the cultivation of
properties that her husband Rangappa breathed the last about 7 months prior to
that and even thereafter as usual he is assisting her in attending her works.
That out of love and affection towards him he want to settle some properties to
him and thereby settled the property with absolute rights by postponing
possession during her life time by retaining with her to enjoy without right of
alienation. It is about 5 years thereafter on 09.05.1970 admittedly
Narayanappa, W/o.Rangappa breathed the last it thereby establishes that Rangappa
died in 1972 and Narayanamma died in May 1979.
17(d) Said Narayanamma and Pullamma are the daughters of one Balappa and
Mangamma of Chayapuram not in dispute and also of the fact that besides
Narayanamma and Pullamma the two daughters, their parents Balappa and Mangamma
were having a son Chandrappa who died unmarried pre-deceased his mother
Mangamma, in 1928-29 i.e., about 8 or 9 years after death of Balappa original
owner in 1920. It is practically to say among the properties of Balappa and
Mangamma whatever Narayanamma got is thereby the maternal side properties and
not the properties of Narayanamma's husband (Rangappa) so far as the suit
properties are concerned. It is further to say whatever Narayanamma settled in
favour of his late Sister Pullamma's son under Ex.A-1 gift deed of 1973 and
daughter's two sons each 1/3rd out of the remaining half and to the 1st
defendant but so called adopted son of Narayanamma another 1/3rd out of half
i.e., 1/6th besides the 1/3rd out of remaining half to Rosanna so called adopted
son of Narayanamma i.e., 1st defendant herein. It is thereafter the litigation
was first started was first covered by O.S. No.274 of 1973 between Rosanna, the
1st defendant, in the suit said adopted son of Narayanamma on one hand and
Narayanamma along with her sister's son and sisters as plaintiffs therein on the
other hand.
17(e) The plaint in O.S. No.274 of 1973 marked as Ex.B-15 reads that the
defendant Kakarla Rosanna was referred as alleged adopted son of Kakarla
Rangappa (husband of Narayanamma) do also refers from para-3 of the plaint Ex.B-
15 that properties belonged to Prathipati Balappa i.e., Narayanamma's father and
also family genealogy Balappa's wife Mangamma was having a son by name
Chandrappa besides Pullamma and said Narayanamma and Balappa died leaving his
three children and after Balappa's property devolved upon Chandrappa who died
unmarried about 8 years after death of Balappa and thereby schedule properties
devolved upon Balappa's wife Mangamma i.e., mother of Pullamma and Narayanamma
and later Pullamma died and Mangamma also died and thereby claimed Narayanamma
became absolute owner of entire property after death of her mother Mangamma and
Narayanamma was cultivating the property with possession and enjoyment. Later
she executed gift-cum-settlement deed dated 15.06.1959 Ex.A-7 by settling
undivided half share of schedule properties in favour of Rosanna the 1st
defendant and two others Aswarthappa and Narayana (Narayanappa) jointly by
retaining possession with her while conveying title to take possession after her
life time. It is further averred from para-5 that the defendant Rosanna
alleging as adopted son of her by placing reliance upon adoption deed dated
13.11.1942 (Ex.B-1) and the so called adoption itself is invalid and
unenforceable and alleged adoption no way bind the properties of her
(Narayanamma) but for said Rosanna has got only and the only undivided joint
right along with Aswarthappa and Narayanamma in the property settled by her
(settlement deed dated 15.06.1959 as regards other joint half the 1st plaintiff
(Narayanamma) gifted in favour of the 2nd plaintiff Narsappa by retaining
possession with her with life interest enjoyment about three months prior to the
filing of this suit under Ex.A-1 dated 13.04.1973. It is further averred from
para-6 that the 1st plaintiff (Narayanamma) have been enjoying the schedule
mentioned properties and by residing in one of the items therein and her husband
also died 9 months prior to the filing of the suit (1972) as discussed supra and
thereafter she has leased out the schedule mentioned landed properties to the
second plaintiff i.e., Narsappa on Koru basis. It is further averred from para-
7 of the plaint that the defendant Rosanna without having any manner of title or
possession over the schedule properties during the life time of 1st plaintiff,
taking advantage of the death of her husband Rangappa and her helplessness being
widow, started threatening to enter into the schedule properties by use of force
and so proclaiming to cause obstruction to the enjoyment of her properties with
support of rowdy elements which made the plaintiffs (Narayanamma and Narsappa)
to file the suit for injunction restraining the defendant (Rosanna). The cause
of action averred was from the date of death of her husband and from three days
prior to the filing of the suit, when from the defendant started threatening to
enter possession by dispossessing her and prayer in the plaint as per para 10 is
to pass a decree in favour of the plaintiffs and against the defendant granting
permanent prohibitory injunction restraining him and his men from interfering
with peaceful possession and enjoyment of the properties and for costs. The
plaint filed was in July, 1973. The schedule properties described therein were
in 9 items of landed property in survey numbers 921/B (10-50 cents) 923/A (3-24
cents), 925/C (11-06 cents), 931/B (Ac.1-15 cents), 931/D (Ac.1-91 cents) 933/D
(Ac.7-03 cents), 1029/D (Ac.3-40 cents), 1038/D (Ac.1-54 cents) and 1041/B
(Ac.2-20 cents), total Ac.34-58 cents besides the house property of Chayapuram,
H/o.Konakandla village. The written statement filed by defendant Rosanna
(marked as Ex.B-16) reads that after death of Chandrappa (Narayanappa's brother
on 28.02.1974) his mother Mangamma (Balappa husband of Mangamma predeceased his
son Chandrappa) took her son-in-law Rangappa (husband fo Narayanamma 1st
plaintiff in the suit) as her illatom son-in-law having affiliated by illatum
adoption by giving half share in the property as per custom and usage prevalent
in their area and other half should go to her daughter Narayanamma (1st
plaintiff) and since then Rangappa and his wife Narayanamma were living in the
house of Mangamma and thus it is not 1st plaintiff Narayanamma alone that became
absolute owner after death of Mangamma, but for to say Narayanamma and her
husband were having undivided half each as joint owners in possession with right
and enjoyment. It is further averred in para-5 of the written statement that
was marked as Ex.B-22 that late Rangappa and 1st plaintiff (Narayanamma) have
adopted Rosanna as their adopted son on 13.11.1942 under registered deed
executed by the 1st defendant and attested by late Rangappa. This portion reads
that the adoption was under the document and not any oral adoption followed by
any ceremony and subsequently acknowledged by the document Ex.B-1 as discussed
supra have been from said recitals therein and from said recitals the said
contention of Rangappa and Narayanamma both adopted him is proved false as it
was the deed executed by Narayanamma for herself as executant and in the name of
her as minor Rosanna's guardian-cum-adopted mother. It is already discussed on
said adoption by Narayanamma during life time of her husband Rangapa is invalid.
Mere attestation by Rangappa of the document no way confers any right muchless
to say or describe Rangappa as co-executant and he got knowledge, even
attributing knowledge of the contents of the document not possible without
cogent evidence, he has taken as with knowledge and when it is not as per law
and hit by law and there is no proof of giving of adoption by the natural
parents of Rosanna and there is no proof of taking of adoption by the person
competent i.e., Rangappa, the execution of the deed by Narayanamma as if she
adopted with alleged consent of her husband no way sanctifies. The other
contention in the written statement Ex.B-16, para-5 is that as per premise of
the adoption deed (Ex.B1) is not only adopted son of Narayanamma but also
created immediate rights of him in respect of her share of properties devolved
upon, from her parents and delivered possession thereafter. As discussed
already, from reading of Ex.B-1 and Ex.A-7 she referred all her absolute
properties and did not refer has got only share in the properties muchless
saying her husband was illatum son-in-law and given half share in the properties
after death of her mother. Ex.B-1 even describes her properties which she get
from her father Balappa. There is nothing to speak any delivery of properties
to Rosanna by her; for giving any credence to said contention in the written
statement para-5, page-2 of she delivered possession to him of any properties
muchless he was in possession and enjoyment in his own right. In fact as
described above he was admittedly aged 7 years and he deposed as D.W-1 by then
aged 6 years. Once he was minor admittedly 7 years by alleged adoption deed
dated 13.11.1942, the question of settling any properties to him as adopted son
under the document or his possession and enjoyment thereunder does not arise.
What all described is being adopted son he has to enjoy after life time of her
husband and herself by performing their obsequies and no interest presandi
thereunder created and even taken as created is subject to the adoption as
adopted son and that was invalid no right to possession thereunder to confer as
discussed supra. Coming to his Ex.B-16 written statement in para-5 further
avers at page 2 he alleges after Rangappa's death, the other half in the
properties as his adopted son devolved on him or he in his own right and
enjoyment in possession of the plaint schedule properties, same are not tenable
muchless to dispute possession of Narayana over the properties. Ex.B-16 written
statement further averments are that the 1st plaintiff (Narayanamma) executed
gift deed on 13.06.1969, (in fact it is Ex.A-7 dated 15.06.1959) alleging that
she has not the sole owner to execute the gift deed for having a share in the
plaint schedule properties only to validate the gift only in her share. It is
important to note he did not dispute the said gift deed he did not deny the said
gift deed and its execution, but for if at all to say supra, for which as
answered already it requires no repetition of he was conferred with no right in
any extent of property of her. Coming to written statement para-7 averments on
the date of adoption deed dated 13.11.1942 the 1st plaintiff Narayanamma created
rights in favour of Rosanna in all her properties which she inherited to her and
delivered possession and thereby he is joint owner of plaint schedule properties
as adopted son and after death of her adopted father Rangappa got right and
thereby the suit for injunction is not maintainable, it is as answered supra no
way requires repetition for no right given no possession delivered and no right
he got for such contention. Having accepted Ex.A-7 gift deed by specifically
not denied and of it is acted upon having not disputed. In the absence of proof
of validity of the adoption muchless he was adopted by Rangappa (Husband of
Narayanamma) muchless Rangappa was given half of the properties by mother-in-law
of Rangappa named Mangamma as illatum son-in-law, his right to claim any
entitlement over any of the properties muchless with possession does not arise
apart from no right conferred even under so called adoption deed Ex.B-1 dated
13.11.1942 and for no such whisper even in Ex.B-1 or Ex.A-7 to let in any oral
evidence contrary to said documentary evidence as discussed supra. Further once
he accepted and not disputed Ex.A-7 gift deed dated 15.06.1959 the possession is
retained with Narayanamma for the property by conferring right in favour of
three persons along with the 1st defendant to have undivided 1/3rd out of the
said settlement deed which is only half share by retaining other half with her
not to say only undivided right after her life time for 1/6th out of properties.
He cannot thereby claim any right of possession even taken for arguments he was
allowed to continue in management of any properties of Narayanamma in her life
time as alleged adopted son. Coming to the Ex.B-16 further averments from para-
8 that he was in possession and enjoyment along with Narayanamma as joint owner
concerned, as discussed supra the adoption deed is invalid and without authority
and there was no giving and taking and there was no right created in any
properties pursuant to it, thus question of claiming joint rights or joint
possession does not arise. Ex.B-16 written statement para-9 averments, are
nothing but repetition of what is discussed supra. His further averments from
para-11 of the Ex.B-16 written statements regarding his payment of taxes no way
creates rights but for from settled law of any payment is on behalf of the owner
entitled to possession and not even to claim any adverse possession muchless
right of possession.
17(f) Even coming to with the evidence of 2nd plaintiff Narsappa as P.W-2
one T.Pullayya 1st plaintiff and one T.Laxmayya and with reference to documents
Exs.A-1 to A-10 i.e., gift deed, No.3 accounts, cist receipts relating to the
suit properties and the voters list from 1959 to 1971 and from the evidence of
Ch.Venkatappa, T.Peda Venkata Rao, K.Srinivasa Rao, Veerababu, D.Ws 1 to 5 with
reference to Exs.B-1 to B-15 statement before police in criminal case of
T.Narsappa and affidavit of T.Laxmappa and adoption deed of 1942 and cist
receipts, cist payment book, Lagna Patrika (wedding card of Rosanna) No.10(1)
adangal, police complaint, L.C.C. notice and order and notice to surrender,
placed by the parties the suit in O.S. No.274 of 1973 by judgment dated
23.04.1979 ended in dismissal. The judgment speaks that, defendant's evidence
in the suit shows Rangappa was taken as illatum son-in-law by Mangamma as per
custom and he was managing the properties. Mulla Hindu law under note 515 under
the head Illatum son-in-law by custom of affiliating the son-in-law and giving
him a share as per Old Madras Presidency to which the State of A.P. is part and
the custom was given a social recognition by referring to a judgment of
Kirstnamma V. Venkatasubbayya43 regarding the said custom not old; that D.W-2
deposed in this regard to believe the contention of the defendant and though
under Mulla under head 515(a) it speaks a specific agreement is the basis of
this affiliation, difficult to secure such evidence to prove for same taken
place long ago and when plaintiffs not adduced any evidence rebutting said
evidence of D.Ws by denying illatum adoption, despite D.Ws 1 and 2 speak that in
Kamma community there is such custom, it is difficult to prove by securing
documents of the 60 years old transaction taken place if at all prior to 1936
and thereby held that Mangamma had adopted Rangappa, the husband of Narayanamma,
as illatum son-in-law; once that is the case, 1st plaintiff Narayanamma even got
in remaining half, for which the gift deed Ex.A-7 dated 15.06.1959 said to have
been executed; the defendant Rosanna when contends that he was taken in adoption
by Narayanamma and Rangappa in 1942 under the document filed, who is no other
than Rangappa's brother's son, D.W-1, one of the attestor-P.C.Venkatappa to the
adoption deed that Rosanna was taken in adoption and at that time Rangappa the
husband of Narayanamma was also present along with Narayanamma, executed the
document and they adopted with consent of parents of Rosanna and there from all
went to Guntakal to get the adoption deed executed and registered and since then
Rosanna was cultivating all the properties to say from 1942.
18) In fact said conclusion of the trial Court is also no basis as discussed
supra of Rosanna by then admittedly 6 or 7 years a minor and the question of his
inducting to possession as adopted son of any properties for his personal
cultivation and management does not arise from his age of 6 years and that
itself belies above evidence and as discussed supra the adoption deed of the
year 1942 Ex.B-1 herein nowhere speaks the parents of Rosanna present and given
the child in adoption muchless stood as attestors and there is no recital of
giving and taking muchless or Rangappa husband of Narayanamma and it is not the
adoption between Rangappa and Rosanna's father Pullayya @ Pullanna and no oral
evidence can be substituted contrary to the documentary evidence even under
Section 91 and 92 of the Evidence Act but for to explain anything from the
contents and the said contrary evidence no way surviving to prevail over the
documentary evidence. Thus, above findings no way improves the lis in favour of
the appellant-1st defendant. Said decree and judgment in O.S. No.274 of 1973
which are marked as Ex.B-18 and B-17 respectively was subject matter of appeal
in A.S. No.119 of 1979 which is marked as Ex.A-2. The appeal judgment of the
District Court in A.S. No.119 of 1979 i.e., the appeal filed by 2nd plaintiff of
O.S. No.274 of 1973 T.Narsappa as Narayanamma the 1st plaintiff in the suit by
then breathed the last on 09.05.1979 and the appeal filed against all the 6
defendants of the suit and the Ex.A-2 appeal judgment of the District Court
speaks from para-6 that point arises for consideration in the appeal was whether
the appellant in possession of the plaint schedule properties to the exclusion
of respondents for entitlement of injunction prayed for. From para-7 onwards of
the appeal judgment it was observed that, when admittedly the plaint schedule
properties originally belonged to Prathipati Balappa and Balappa had three
children, Chandrappa, Pullamma and Narayanamma and Narayanamma was married to
Rangappa and Rangappa brother's son is the said Rosanna 1st defendant and
Aswarthappa and Narayanappa the other donees along with Rosanna (of the gift
deed dated 15.06.1959) of the daughter's son of Pullamma (sister of
Narayanamma), the respondents 2 to 5 are the children of Aswarthappa and 6th
respondent is brother of Aswarthappa, for Aswarthappa no more, when Balappa died
50 years ago to the plaint i.e., prior to 1923 and on his death of his
properties were devolved on his son Chandrappa who died 8 years later (prior to
1930-31) and after his death the properties devolved on Mangamma (Chandrappa's
mother and Balappa's wife) and out of the two daughters of Mangamma, Pullamma
pre-deceased Mangamma, on the death of Mangamma about 18 years before filing of
the suit in 1973 (in fact Mangamma died in 1942 or so) as she was not alive even
by the date of the so called adoption deed dated 13.11.1942 from its recitals
and there from the properties devolved upon Narayanamma only surviving daughter
of Mangamma i.e., the 1st defendant therein and since then she was in possession
and enjoyment and leased out the properties to the 2nd plaintiff particularly
after the death of her husband Rangappa (about few months before filing of suit
in 1973) and in the plaint averred that Rosanna was interfered with possession
by threatening her and the 1st defendant Rosanna came with contention in the
written statement for no written statement filed by defendants 2 to 5 sons of
Aswarthappa or defendant No.6 Narsappa alleging Mangamma took Rangappa as
illatum son-in-law after death of Chandrappa to give half share in the
properties and Rangappa and Narayanamma adopted 1st defendant in 1942 and 1st
plaintiff gave her half share to 1st defendant, the 1st defendant having not
denied specifically plaint allegations of death of Balappa and Chandrappa and
Pullamma of respective dates. The 1st defendant for setting up his case of
alleged adoption in 1942 has no knowledge to speak the alleged illatum adoption
of Rangappa by Mangamma, so to plead in the written statement muchless the
illatum adoption of Rangappa by Mangamma or so to plead in the written statement
muchless the illatum adoption with agreement to give any half share, when he
does not know anything as to when exactly illatum adoption takes place and when
he admitted in cross-examination as D.W-1 the lands in dispute were the lands of
Narayanamma which she got from her mother Mangamma and D.W-2 also witness to
speak illatum adoption of Rangappa, admitted he has no personally aware of said
illatum adoption as he was a young boy, the evidence on record nowhere show
Rangappa was taken as illatum son-in-law by Balappa muchless with any agreement
to give half share in the property and thereby lower Court went wrong so to
conclude of alleged illatum adoption of Rangappa by Balappa and Mangamma is
proved and to that conclusion the appellate Court referred a judgment in Pedda
Changamma V. Chinna Chengamma44 that for illatum adoption it is essential pre-
requisite of adoptive must marry the daughter of the adopter and that there must
be an agreement to give a share and mere living in the house of father-in-law
would not make him in illatum son-in-law. In the absence of establishment of
both the ingredients in need to confer the status and the same principle is
reiterated Venkayya V. Satyanarayana45. The 1st defendant also admitted that he
subsequently filed O.S. No.80 of 1977 on the file of Sub-Court, Anantapur for
possession of plaint schedule properties against Narsappa (2nd plaintiff in O.S.
No.274 of 1973). Said Narsappa filed I.A. No.231 of 1981 seeking permission to
adduce evidence by filing certified copy of plaint in O.S. No.80 of 1977 as
additional evidence which petition was opposed even that suit was filed
subsequent to the giving of evidence in the suit and thereby he could not adduce
evidence in the trial Court in seeking to adduce as additional evidence thereby
received the same and marked as Ex.A-11, plaint copy, wherein as plaintiff the
1st defendant to the suit O.S. No.274 of 1973 by name Rosanna alleged that those
were the absolute properties of Narayanamma. It belies his contention of
Rangappa illatum son-in-law muchless under any custom of Kamma community and
Rosanna as D.W-1 in the suit O.S. No.274 of 1973 deposed of alleged adoption by
Rangappa and Narayanamma in their house in 1942 and his natural parents and
adopted parents present and natural parents agreed to give him in adoption and
on the following day the adoption was recorded by the execution of deed
(registered adoption deed dated 13.11.1942) and adoptive father Rangappa
attested the deed and therefrom he was living in the house of adoptive parents
and his marriage was performed by preparing Lagna Patrika describing as adopted
son and he deposed as D.W-5 that he was minor hardly 10 years by then and D.W-1
deposed of no special rituals performed for alleged adoption and the evidence is
not even consistent with D.Ws 2 to 5 with reference to so called adoption deed
marked as Ex.B-3 as contended.
19) When the recitals speak Narayanamma adopted with consent of husband, even
that itself is suffice to say the adoption is invalid for there is nothing even
established of natural parents delivered the child to Rangappa and his wife
Narayanamma to take by them in adoption as a pre-requisite even no rituals
required to the same in particular form, further in the absence of evidence of
giving and acceptance, no presumption can be drawn as held in Vaithalingam V.
Natesa46 and there can be no valid adoption unless adoptive boy is transferred
from one family to another family by ceremony of giving and taking required to
be true as also held in Lakshman Singh V. Rup.Kanwar47. The evidence of D.Ws 1
and 2 nowhere shown the natural parents agreed to give the adoptive boy to so
called adoptive parents and pursuant to it giving and taking of adoption even
from so called deed recitals. Even taken the recital in the so called deed of
adoption of Rosanna to enjoy with absolute rights on the properties of
Narayanamma which she inherited from her parents. It shows Mangamma died in
1949 or so and thus by then Narayanamma even acquired no property rights in the
property to convey under so called adoption deed in 1942. Thus, no rights in any
property to convey muchless conveyed from said recitals of 1942 document supra.
When Narayanamma got her husband, who admittedly died few months before filing
of the suit in 1973 and claimed that she was in possession and later through 2nd
plaintiff by leased out, the lower Court went wrong in not believing the
evidence of plaintiffs in support of the plea. Coming to the gift of joint
rights in the half share of Narayanamma under gift deed dated 15.06.1959
alleged, which was in favour of Rosanna, Aswarthappa, Narayana all three persons
to get jointly, there is nothing to reject said evidence muchless to doubt the
Ex.A-1 gift deed (15.06.1959) marked therein whereunder Narayanamma was given
her half share out of her properties to the three persons jointly and there
remain the other half and even that document shows she has been cultivating the
said properties and the revenue adangals No.2 account, No.13 account also show
Narayanamma was paying land revenue after death of her mother Mangamma over the
properties with possession including for the fasali 1382 and the tax receipts
book also show Narayanamma was paying the land revenue including for the years
1972-73 and even Rosanna the so called adopted son stated that about 9 months
after death of Rangappa, Narsappa, 2nd plaintiff in suit O.S. No.274 of 1973,
took away Narayanamma to their house and started disputes and also gave police
report against him as if he was interfered with his possession and he gave an
undertaking of he would not interfere with his possession. He also admitted
that he was paying land revenue in the name of Narayanamma. Patta was to say
transferred in his name, it is not known how transfer of patta was affected
during life time of Narayanamma in the name of Rosanna. D.W-4 village Munsiff
stated that Rosanna was paying land revenue on behalf of Narayanamma and D.W-1
also stated that Narayanamma was in possession of the same and D.W-2 also stated
Narayanamma alone in possession and D.W-3 also stated that only after death of
Narayanamma, Rosanna came into possession of the house and D.W-4 also stated
that all the properties belongs to Narayanamma and this is clear from the said
evidence including from the evidence of D.W-5 of Narayanamma's possession and
enjoyment of property by paying taxes in her name being its owner subject to the
gifts by retaining life time possession and enjoyment. 1st defendant Rosanna
stated that after police complaint was given under Ex.B-1, the suit filed was
within 2 months and to say that his undertaking/statement was obtained by
coersion, there is no basis. In fact Ex.B-1 dated 29.06.1973 was few days prior
to the date of filing of suit of 10.07.1973 and as concluded by the appellate
Court in its judgment Ex.A-2, the 1st respondent was cultivating the suit lands
by the date of suit only on behalf of Narayanamma and even Narayanamma was alone
in possession as on the date of suit, however, for the oral lease set up by 2nd
plaintiff-appellant, for no proof and Narayanamma died subsequently, the
appellant is not entitled to the suit relief of injunction. No doubt, the
appellant got half share in the properties by virtue of the gift in his favour
by Narayanamma. When such is the case under the other gift by Narayanamma, the
defendants are entitled to the remaining half and between co-owners there cannot
be no permanent injunction in dismissing the appeal ultimately.
20) It is to say from the first appeal judgment that, the finding of the trial
Court in O.S. No.274 of 1973 of Rosanna was the adopted son by virtue of the
adoption deed dated 13.11.1942 is not correct for there is no valid adoption,
but for to say Rosanna, Aswarthappa and Narayana were given to give half share
out of properties of the Narayanamma by her earlier and the other half given to
Narayanappa and as such between co-owners there can be no injunction in the
whole property undivided.
21) In the second appeal against the judgment dated 18.03.1987 covered by Ex.B-
21 i.e., S.A. No.170 of 1982 against A.S. No.119 of 1979 against O.S. No.274 of
1973, it was held that in view of the present suit in O.S. No.102 of 1985 filed
for partition in Sub-Court, the Subordinate Judge to dispose of the said suit on
merits accordingly, without being influenced by the observations of first
appellate Court in A.S. No.119 of 1979.
22) Before coming further to the present lis, even uninfluenced by said
observations, what is discussed supra is crystal clear of Narayanamma the
absolute owner in possession and enjoyment and the adoption deed is invalid as
discussed supra in detail and Narayanamma never parted with her possession and
enjoyment even conveyed rights under the two gift deeds Ex.A-7 and A-1
respectively and it is after lifetime of Narayanamma the respective donees of
the gift deeds to the respective extents entitled to possession that was
reserved by her for her enjoyment.
23) Apart from the above, coming to the lis in O.S. No.80 of 1977, Ex.A-3 to A-6
are the plaint, written statement, judgment and decree in O.S. No.80 of 1977.
As discussed supra, the plaint in O.S. No.80 of 1977 was marked as Ex.A-11 in
A.S. No.119 of 1979. Thus, so far as O.S. No.274 of 1973 concerned it is left
open to decide the present lis in O.S. No.102 of 1985 independently and
uninfluenced by any adverse observations in O.S. No.274 of 1973 and the findings
in A.S. No.119 of 1979. But for that, it nowhere set aside in the second appeal
S.A. No.170 of 1982 covered by Ex.B-21 the appeal judgment findings. As per
O.S. No.80 of 1977 plaint copy Ex.A-3 which is a suit filed by K.Rosanna against
T.Narsappa 2nd plaintiff and 6th defendant of O.S. No.274 of 1973 and Yanappa
i.e., 1st defendant against plaintiffs of O.S. No.274 of 1973 filed on
21.11.1974 as indigent person informa papuries seeking lis; the plaint averments
were that the A-schedule properties are the absolute properties of Kakarla
Narayanamma who died on 21.10.1974 (in fact she died on 09.05.1979 only during
the pendency of O.S. No.274 of 1973 as per the record), that Rangappa was her
husband, who died in or about February, 1973. In fact in the registered gift
deed dated 13.04.1973 in favour of Narsappa by Narayanamma, it was referred he
died 7 months prior to that, that was in July 1972, that plaintiff was taken in
adoption of Rangappa and Narayanamma as per Hindu Dharma Sastras being the
adoptive father's brother's son of same family with all ceremonies of giving and
taking of the adoption dated 12.11.1942 and evidencing the same an adoption deed
was executed on 13.11.1942 by Narayanamma with consent and approval of her
husband and other respective people were also attested in the adoption deed and
later plaintiff was treated as adopted son of Rangappa and Narayanamma, Balappa
was also brought to the family by his father-in-law for no male assistance since
only child Chandrappa died and plaintiff was living with Narayanamma in her
father's house along with husband of Narayanamma who were affectionate towards
him and performed his marriage subsequent to said adoption and he continued as
their son and they treated him as adopted son and in the registered deed of
adoption dated 13.11.1942, all properties belonging to Narayanamma and Rangappa
were vested on him thereby he is entitled to the properties shown in the plaint
A-schedule which has been in his possession and enjoyment uninterruptedly since
1942 till she was ousted from possession by orders in I.A. No.674 of 1973 in
O.S. No.274 of 1973 and he perfected title by adverse possession over the
properties and Narayanamma and the 1st defendant herein by name T.Narsappa as
plaintiffs filed O.S. No.274 of 1973 obtained temporary injunction against him
and because of the temporary injunction orders he was ousted from possession as
supra by her and her eldest sisters Pullamma's son-Narsappa, that said
Narayanamma's eldest sister's daughter's son Narayana (D-2 in the suit) by
taking advantage of old age and fickle mind of Narayanamma, prevailed in
creating a document for suit properties which does not create any interest as by
1942 itself she completely divested of all her rights and of her husband over
the properties. Thus, no right to convey and by virtue of filing of O.S. No.274
of 1973 for injunction a cloud is cast on his right, title and interest, he
filed the suit for declaration of title and possession as dispossessed by taking
advantage of order in I.A. No.674 of 1973 in O.S. No.274 of 1973 and he got
cause of action for the same from date of adoption on 12.11.1942 and deed of
adoption on 13.11.1942 and in February, 1973 when Rangamma died, in October,
1974 when Narayanamma died and in 1942 when from he was exercising right over
the properties and since when he was dispossessed as per orders in I.A. No.674
of 1973 in I.A. No.274 of 1973. In fact, in the plaint referred supra Ex.A-3,
the date of death of Rangappa given as false so also date of death of
Narayanamma. The so called adoption allegedly taken up by giving and taking on
12.11.1942 not made a whisper in his written statement as sole defendant, no
doubt subsequently after defendants 2 to 6 added, in O.S. No.274 of 1973, in his
evidence as D.W-5 the alleged giving and taking of adoption introduced from the
evidence of him and of the alleged attestor to the document. Even said oral
evidence introduced with no plea which is contra to the recitals of the adoption
deed dated 13.11.1942 cannot be permitted for the document is silent as to
giving and taking by the natural parents of Rosanna muchless by Narayanamma's
husband Rangappa, but for alleged adoption by Narayanamma under the document
which is observed as invalid since against the law in discussing and dealing
with the appeal from what is concluded supra to substantiate. To say he is not
the adopted son of Rangappa and to claim as adopted son of Narayanamma, from the
invalid document dated 13.11.1942 for her no right by then even in any
properties and there is no proof of giving and taking which is a pre-requisite
to establish so called adoption since not proved muchless conveying any property
thereunder. The question of any delivery of possession to him also muchless of
his taking of possession and started cultivation and enjoyment from then of
hardly 6 years old, besides not believable does not arise practically for any
adverse possession against Narayanamma for not even shown represented by any
other person as guardian, apart from the fact of there is no convenience of any
property rights over the property of Narayanamma under the document to him by
any alleged recital of 1942 document as concluded supra, to claim any right
muchless with title or adverse possession. That also belie from evidence on
record covered by O.S. No.274 of 1973 more particularly from the evidence of
D.Ws 1 to 4 and of D.W-5 from the admissions in the cross-examination of
property standing in the name of Narayanamma till her death and any tax paid by
him was only on behalf of the Narayanamma and not in his name and there was no
transfer of the property by mutation but for just before filing of the suit in
O.S. No.274 of 1973 if any from D.W-4's evidence and even the revenue people
have no authority to change the mutation and that does not confer any right and
having paid the tax on behalf of Narayanamma by acknowledging her right over the
property, he cannot claim by any possession over the property muchless to set up
any adverse possession. In the written statement in O.S.No.80 of 1977 marked as
Ex.A-4 the said T.Narsappa (Plaintiff in O.S. No.102 of 1985) contended that the
property belongs to Narayanamma is true and her husband died in 1973 also true,
so also she died in October, 1974, but for to say the allegation of his taking
of adoption by Narayanamma and her husband Rangappa under Hindu Law as false and
there was no any ceremony of giving and taking for alleged adoption, muchless
prior to the execution of said document dated 13.11.1942 so to claim and for
Narayanamma to execute a document to adopt, she has no competency or authority
to adopt any person muchless said Rosanna (plaintiff) and the alleged consent of
her husband is not correct for no consent in writing required by law to adopt
after his life time. Said document has no legal sanctity to make a claim
thereunder muchless to maintain the suit with such claim and he filed the suit
with an invented claim for non-existing right and he never lived with
Narayanamma and Rangappa and the alleged adoption deed recitals give no right or
possession thereunder for even saying he was ousted by virtue of orders in I.A.
No.674 of 1973 in O.S. No.274 of 1973 for the first time. It was thereby the
injunction order was granted against him and the appeal against the order in
I.A. No.674 of 1973, as C.M.A. No.20 of 1973 was also ended in dismissal by
confirming the injunction order which he cannot question. He contended that they
never prevailed upon Narayanamma to execute any document for her properties.
Narayanamma in her free will and volition and with full knowledge and in sound
mind executed the gift deed dated 15.06.1959(Ex.A-7) gifting undivided half of
her properties in plaint-A schedule in favour of Rosanna, Aswarthappa and
Narayana by reserving life interest possession and enjoyment with her and later
she executed another gift deed in 13.04.1973 (Ex.A1) voluntarily in favour of
Narsappa for the remaining half by reserving life interest, possession and
enjoyment with her and she also executed a power of attorney in favour of
Narsappa to manage her properties and after death of Narsamma and the gift deeds
the 1st defendant entitled to possession of half of the properties and Narayana
(2nd defendant to the suit), the plaintiff Rosanna entitled 1/6th and other
1/6th by the sons and daughter of Aswarthappa and thereby the suit for
declaration and possession for entire plaint schedule property is not tenable
and he has no right to question the gift deeds and the suit is bad for non-
joinder of parties and the suit is not maintainable and there is no cause of
action and to dismiss the suit.
24) It is for default of said Rosanna, the Court dismissed the suit covered by
dismissal judgment and decree dated 26.08.1982 which are Exs.A-5 and A-6. There
is nothing to show any filing of petition for restoration of the suit O.S. No.80
of 1977 dismissed for default on 26.08.1982 which is covered by Exs.A-3 to A-6
in the lis covered by the present appeal on hand against O.S. No.102 of 1985.
25) The 1st plaintiff T.Narsappa deposed as P.W-1 that the suit properties
originally belonged to T.Balappa who died 70 years ago prior to his evidence in
1992 (as stated already from the record it shows Balappa died in or around 1920
and his son Chandrappa died 8 years later in or around 1928-29) and he was
having wife Mangamma and two daughters Pullamma, Narayanamma and Pullamma also
died and after death of Chandrappa, S/o.Balappa wife of Balappa, Mangamma,
succeeded the properties and she also died and after her death as one of her
daughter pre-deceased her, the only surviving daughter Narayanamma succeeded the
properties and that he is son of said Pullamma pre-deceased sister of
Narayanamma. He also deposed that the plaintiffs 2 to 4 in the suit Narayana
Swamy, Narasimhulu, Rajendra, S/o. Aswarthappa besides 2nd defendant Narayanamma
D/o. Aswarthappa, 3rd defendant Narayana (brother of Aswarthappa) are his late
sister's issues i.e., Aswarthappa and Narayana are his sister's sons. He
further deposed that Narayanamma, his mother's sister, executed the gift deed in
1973 (Ex.A-1) in his favour giving half of her property by reserving life
interest enjoyment with possession with her and it was executed as per the
instructions of Narayanamma in a sound and healthy state of mind and it was
purely executed and attested after her understood as contents which were as per
her say after the same was read over in the presence of attestors besides
himself present and she cause it registered, the Registrar also read over and
she accepted and put her thumb impression and was identified by identifying
witnesses for registration and after life time of Narayanamma he came into
possession of property pursuant to the gift deed. He deposed that Narayanamma's
husband Rangappa had no property he never went into illatum son-in-law to
Mangamma and Balappa and Rosanna was never adopted by Rangappa and Narayanamma
and while he was cultivating the property in the year 1973 Rosanna along with
some police came and obstructed and they filed O.S. No.274 of 1973 and obtained
temporary injunction against Rosanna and against the suit dismissal he filed
appeal covered by Ex.A-2 appeal judgment dated 24.09.1981 in O.S. No.117 of 1979
holding between co-owners there could be no injunction as he was holding half of
the suit schedule property and in the remaining half Rosanna got right along
with others and Rosanna filed O.S. No.80 of 1977 as indigent person in 1974 and
the suit was dismissed for default covered by Ex.A-3 to A-6 plaint, statement,
decree and judgment. Prior to the suit he asked the defendants to cooperate for
partition and they did not agree, which made him to file the suit for partition
and separate possession (of 5/8th share) and for other reliefs in plaint
schedule properties. As the remaining properties belongs to Aswarthappa,
Narayana and Rosanna to whom Narayanamma gifted with life interest possession
covered by Ex.A-7 (dated 15.06.1959) and as plaintiffs 2 to 4 succeeded the
1/3rd share of Ex.A-7 that of Aswarthappa the suit is for their share also for
partition.
26) In the cross-examination deposed that the 1st defendant Rosanna originally
native of Kasipuram-Kottala and Narayanamma's husband Rangappa was his father's
brother and denied the suggestion and since Rangappa's marriage with Narayanamma
he was residing at her parents' place Chayapuram or he was taken as illatum son-
in-law by his mother-in-law Mangamma after death of Mangamma's husband Balappa
and son Chandrappa. He deposed that he was cultivating the plaint schedule
property on Koru basis till death of Narayanamma and when Rosanna (1st
defendant) obstructed the suit for permanent injunction (O.S. No.274 of 1973)
filed and he denied the suggestion that Rosanna, 1st defendant, was taken in
adoption by Narayanamma under adoption deed (Ex.B-1 dated 13.11.1942) and also
denied the suggestion that Narayanamma conveyed her properties under the same to
Rosanna i.e., 1st defendant. In the further cross-examination he deposed that
Narayanamma executed Ex.A-1 dated 13.04.1973 in his favour prior to their filing
of suit O.S. No.274 of 1973 in Gooty Munsif Court he also deposed that the other
half of the properties gifted by Narayanamma to his sister's sons and Rosanna
(1st defendant) equally (Ex.A-7 dated 15.06.1959) it was prior to the gift to
him. He denied the suggestion of Narayanamma executed the Ex.A-7 gift deed
(dated 15.06.1959) with consent of Rosanna (1st defendant). If that is the
case, Rosanna admits the Ex.A-7 gift deed dated 15.06.1959 in referring the
properties as that of Narayanamma in saying he consented and in taking undivided
1/3rd out of half of the properties of her gifted thereunder as remaining half
of her property gifted to Narsappa, 1st plaintiff, under Ex.A-1 dated
13.04.1973. Thus question of setting up adverse possession does not arise apart
from having elected question of reverting back to claim any rights under so
called adoption from 1942 does not arise. P.W-1 denied the suggestion that
Narayanamma educated Rosanna and also performed his marriage or for the suit
properties patta stand in the name of Rosanna (1st defendant). He deposed that
the patta stands in his name and other defendants also for the suit properties
and prior to the transfer in their name, that stood in the name of Narayanamma
and Narayanamma in her life time was paying taxes for the suit properties. He
deposed that Rangappa died 10 years earlier to Narayanamma and Narayanamma died
8 years prior to Ex.A-1 gift deed. In fact as per the record, more particularly
from Ex.A-1 gift deed dated 13.04.1973 recital, Rangappa died 7 months before to
say in July, 1972 whereas Narayanamma died on 09.05.1979. Though Rosanna as
plaintiff in O.S. No.80 of 1977 claimed Narayanamma died in October, 1974. He
rightly denied the suggestion that Rangappa died 2 months 15 days prior to death
of Narayanamma. He deposed that Rangappa came to Chayapuram where he died 8 or
10 months struck off and retyped with days prior to his death at Chayapuram. He
deposed that before death of Narayanamma, he suffered with Diarrhea, aged at
about 74 years with eye sight and deafness and after death of her husband
Rangappa, Narayanamma was looking after by Aswarthappa and Narayana, her
sister's daughter's sons and on behalf of Narayanamma they and himself were
cultivating the lands and Rosanna, 1st defendant, was not with Narayanamma
before her death and the suggestion that Rosanna was paying land revenue since
he attained majority for the lands is denied. He deposed that in the land
ceiling declarations, himself and other plaintiffs show suit lands for about
Ac.15-00 as of him and some by others and the declarations were filed during the
life time of Narayanamma after the death of Rangappa. He deposed that he
performed the obsequies of Narayanamma and not by Rosanna. He deposed that
Narayanamma was hale and healthy till 10 days prior to her death and he was 20
years older to Rosanna (1st defendant). He deposed that for the lands gifted to
him (under Ex.A-1 dated 13.04.1973) he did not pay land revenue during life time
of Narayanamma or later and he cannot say Rosanna, 1st defendant, was paying any
land revenue but for his saying. He deposed that 2 or 3 months prior to the
gift deed, Narayanamma was saying to execute gift deed in his favour and he
denied the suggestion of he brought the gift deed executed by use of force and
stated no knowledge about 1st defendant cause published in Andhra Prabha dated
05.06.1973 (Ex.B-20) that Narayanamma was taken away by them by force and
obtained documents from her.
27) In fact it is necessary to mention here that if really 1st defendant and
Narayanamma were living together either at his house Kottala or at her house
Chayapuram and really she was taken by plaintiff Narsappa and others by force
prior to execution of Ex.A-1 gift deed dated 13.04.1973, he could not wait for
giving the paper publication dated 05.06.1973 for about three months and it
clearly shows his intention is something suspicious in giving of paper
publication after knowing about Ex.A-1 gift deed dated 13.04.1973 executed by
Narayanamma. It is not his case that Narayanamma disputed about her execution
and cause issued any notice or cause issued in the news paper publication. Even
Narayanamma filed O.S. No.274 of 1973 along with Narsappa against Rosanna, 1st
defendant, some time after the gift deed Ex.A-1 dated 13.04.1973 only in June or
July, 1973 as discussed supra by reiterated the gift and not disputed the gift
executed by her. Once the executant admitted there is no more proof required for
the gift for not the case of anybody of not accepted. In the cross-examination
further of P.W-1 Narsappa by 1st defendant Rosanna, he deposed that 1st
defendant was residing in the house of Narayanamma since one year and after
death of Narayanamma her house was in the possession of 1st plaintiff, P.W-1 who
was looking after and not given to anybody and two years after death of
Narayanamma only Rosanna 1st defendant occupied the house by force for which he
neither reported to police nor cause issued notice. He denied the suggestion
that, Narayanamma gave all her properties to Rosanna, 1st defendant, under
adoption deed (Ex.B-1 dated 13.11.1942) and she had no right to execute the gift
deeds. In fact in the earlier cross examination as discussed supra, he admitted
Ex.A-7 gift deed dated 15.06.1959 executed by Narayanamma with his consent and
the suggestion goes contrary to it. In the further cross-examination, he
deposed that he denied the suggestion that out of Narayanamma's properties shown
in the declaration by Rosanna the surplus land was taken by Government by paying
him compensation and he does not know when any extent of Narayanamma was
acquired and 1st defendant on behalf of Narayanamma has taken compensation.
Even this suggestion goes against him for not his case that he made any rival
claim under Section 30 of Land Acquisition Act under alleged adoption deed, if
he is the owner and Narayanamma has no right to be paid any compensation for his
taking compensation on her behalf for the land acquired of her in so suggesting,
to say he also acknowledged right of Narayanamma over the properties therefrom.
Coming to the evidence of P.W-2, A.Bheemappa who is the document writer and
scribe of Ex.A-1 gift deed dated 13.04.1973 executed by Narayanamma in favour of
the plaintiff Narsappa, he deposed about her due execution and his scribing at
her instructions in the presence of attestors and after he scribed the original
after noted the instructions in a paper about the particulars to scribe the
document and after scribing the original document and read over the contents to
executant Narayanamma and attestors, she admitted the contents as correct and
affixed her left thumb impression and attestors present saw the execution and
her putting thumb impression, attested the document in her presence and she was
hale and healthy at the time of execution and he handed over the original
document to the executant Narayanamma and she caused to register before Sub-
Registrar, Guntakal. He deposed that he is a licenced document writer for more
than 30 to 40 years though he cannot giving licence number as on the date of
Ex.A-1 and again he gave his licence particulars of then licence No.5/1972 which
he has obtained in the year,1972. He deposed that he executed by then about
1,000 to 2,000 documents though he cannot give details that to whom he wrote,
what nature of document he deposed that on that day Ex.A-1 was the only document
executed by him for said Narayanamma and about 4 or 5 years thereafter
Narayanamma stated died and he saw Narayanamma at the time of execution and not
before or later and he believed her as Narayanamma from her say as Narayanamma
and she did not bring any documents for executing Ex.A-1 and to say how much
land she gifted under Ex.A-1 he has to verify the document. He denied the
suggestion Narayanamma was having defective eye sight and defective hearing. He
deposed that stamps were purchased by Narayanamma of which he scribed Ex.A-1
gift at the warandah of Sub-Registrar's Office at Guntakal after the stamps
purchased by her from one Lakshmidayamma there in her name for the property
valued worth Rs.15,000/- and on his calculation of stamp worth Rs.450/- he
deposed that both the attestors of Ex.A-1 belong to Chayapuram and Narayanamma
and the attestors came from that village. He deposed that his licence was
suspended about one month before giving evidence on the ground of issued receipt
for excess amount for scribing document, than prescribed amount later it was
restored and he denied the suggestion of frequently his licence was under
suspension for such causes or with the assistance of 1st plaintiff Narsappa and
the attestors and himself, the document Ex.A-1 was corrected and he is deposing
falsehood. There is no denial of the thumb impression of Narayanamma muchless
disputing not that of her that execution before the Sub-Registrar by same
person. Narayanamma in her life time not even disputed even she was alive about
6 years after execution of the document as discussed supra. She herself filed
the suit along with 2nd plaintiff and reiterating the gift deeds therein.
Thereby above cross-examination no way shatters the same. In fact, in his
written statement as 1st defendant Rosanna contended particularly at para-4 that
the gift is not true. Execution of the gift by Narayanamma voluntary is not
true that she was aged about 75 years old by then and mentally not capable of
taking care of herself and taking advantage of her week mental and physical
condition, the 1st defendant (instead of 1st plaintiff to so mention) seems to
have played fraud and might have obtained the gift deed and in any event
Narayanamma has not sole and absolute owner of the property as on the date of
gift and is thereby not valid and enforceable. It is not even stated that
Narayanamma has no title because she parted with all her properties under
alleged adoption deed of Ex.B-1 dated 13.11.1942. It is not even denied the
thumb impression of her and the gift deed and attestation but for saying her
mental condition was not fit for executing. There is no positive evidence on it
regarding her infirm mental stage. Any evidence in cross-examination of P.W-1
of she was having some problem of eye sight and hearing, no way a bar to the
execution of document muchless to assume any mental condition is weak or not
stable muchless to doubt about her capacity to execute gift deed. The fact that
even later to the execution of gift deed by reiterating it she filed the suit in
O.S. No.274 of 1973 itself is sufficient to say the gift executed by her
voluntarily she reiterated it in her pleading she was in fit state of mind, hale
and healthy. In fact one of the attestors (to the document Ex.A-1 gift deed
dated 13.04.1973) was examined as P.W-1 by name T.Pullayya not in dispute. In
proof of the document and in the suit for injunction covered by the Judgment
based on plea regarding the Ex.A-1 gift deed also in the plaint para-5 besides
Ex.A-7 gift deed in the plaint para-4 and there is no specific denial of
competency and state of mind for execution of the gift deed and genuineness of
the gift deeds but for to say she was not the sole owner to execute the gift
deeds. In this regard as discussed supra, she was not the original owner as by
the date of alleged adoption, her mother Mangamma was alive as per the evidence
on record of O.S. No.274 of 1973 from his say as D.W-5 apart from his witnesses
D.Ws 1 to 4 of Mangamma mother of Narayanamma died in or around 1948-49 which is
six years later the date of Ex.B-1 dated 13.11.1942 and by then thus, she has no
property to convey even to rely on Ex.B-1 recital as what she could succeeded
was only after death of her mother; apart from what is discussed supra of said
recitals in Ex.B-1, despite any property of Narayanamma owned and possessed by
them including from any proof of her mother died prior to that, was not conveyed
and title passed under Ex.B-1.
28) Now, coming to the evidence of 1st defendant as D.W-1 regarding the
allegation of Narayanamma's husband Rangappa, no other than his father
Pullayya's brother was went as illatum son-in-law to his mother-in-law's house
and enjoying the properties of his late father-in-law Balappa as illatum son-in-
law along with his wife Narayanamma, that does not mean there was no any illatum
adoption as discussed supra. Balappa died in or around 1920 left behind him his
son Chandrappa and two daughters and there was nothing to bring any son-in-law
in adoption as illatum son-in-law with pre-marital agreement to his one of the
two daughters Narayanamma. Apart from it Chandrappa died un-married in or
around 1928-29 and when such is the case Mangamma whose son pre-deceased her and
whose husband pre-deceased her and her son was having two daughters Pullamma and
Narayanamma and when Pullamma got son and daughter i.e., Narsappa besides
daughter as Dohitrudu to Mangamma, there was nothing to bring any illatum son-
in-law.
29) As per the settled expressions discussed in the Judgments in A.S. No.119 of
1979 covered by Ex.A-2 for illatum adoption there must be pre-marital
arrangement to the daughter i.e., not even the case between Narayanamma and
Rangappa for the marriage to perform there was any such agreement of validate
apart from the fact of Chadnrappa was alive even by the time of their marriage
besides Naryanamma's another married sister Pullamma. There is no evidence
worth regarding the alleged illatum adoption from the material on record and the
evidence of so called witness among D.Ws 1 to 4 in O.S.No.274 of 1973 that
evidence is quite inconsistent and incredible to rely and there is no any record
in proof of it muchless any mediation in the name of Rangappa even to believe
any arrangement to give half of the property under illatum adoption as a
condition to Rangappa for Rosanna as adopted son in allotting so to claim.
Regarding adoption also there are inconsistent pleas and as discussed supra from
Ex.B-1 document relied on by him it no where shows his alleged adoption by
Rangappa but for by Narayanamma in the life time of Rangappa admittedly in his
saying Rangappa is the one of the attestor to the document. When Rangappa not
taken the adoption, but for alleging from the recitals therein by Narayanamma
who was incompetent, the adoption is invalid so also for no proof of giving of
Rosanna in adoption by his parents had has 6th year which is the pre-requisite
to invalidate the adoption as discussed supra. He also categorically deposed in
his chief examination as D.W-1 of he was at the time of alleged adoption in 1942
aged 6 years and it is also his categorically say of Ex.B-1 adoption deed dated
13.11.1942 executed by Narayanamma only in his favour. It was not even in his
favour from the recitals but for a unilateral document of Narayanamma in so
referring as the said Rosanna was her adopted son, who was incompetent to adopt
when her husband was alive. Regarding Ex.B-2 Lagnapatrika referring him as
adopted son in performing his marriage. Regarding Ex.A-7 gift deed dated
15.06.1959 relied on by him under which he was given 1/6 out of properties of
Narayanamma only by claiming as she was the absolute owner of the properties, to
rely in saying he was referred as adopted son of Narayanamma and also at other
place as adopted son of Rangappa, from the settled law once he wanted to rely on
the document to so say regarding his relationship with Narayanamma as adopted
son, he cannot dispute the document and the gift thereunder their settlement
recitals thereunder as a person want to elect and rely on a document he is to
elect to rely on the document as a whole and not on a piece of recital of his
advantage and to dispute the other piece which appears not to his advantage by
aprobate and reprobate as per the settled expressions of law including from the
latest expression therein of the Apex Court in Karan Kapahi V. M/s.Lalchand P.C.
Trust48 where by referring to the Apex Court expression in Nagubai Ammal V.
B.Sham Rao49 categorically discussed the principle at paras 62 to 69 also by
referring to another expression of the Apex Court in C.Beepathuma V. Velasani
S.Kadambolithaya50 para 17 and 18 in saying doctrine of estoppel place to deny
the other portions of the recitals of an instrument when elected to rely on some
portions of the recitals of the document. Even coming to Exs.B-3 to B-10 tax
receipts referred by him in his evidence in chief. Those are the taxes paid by
acknowledging the ownership of Narayanamma with possession and not in any
independent way and that also establish the ownership of the properties that of
Narayanamma with right and possession that is also substantiated from recitals
of Ex.A-7 settlement deed dated 15.06.1959 and Ex.A-1 settlement deed dated
13.04.1973. Even coming to Ex.B-11 referred by him of transfer of patta in his
name by saying from 10(1) account, his name noted as pattadar. There is no
proceeding validly under law for transfer of patta in his name all of a sudden
to give any sanctity to it and the said revenue entry in 10(1) account no way
takes away the title of the Narayanamma muchless possession and enjoyment nor
confer any title to the said Rosanna (D.W-1) muchless coming in the way of the
enforceability of Ex.A-7 and Ex.A-1 settlement deeds; under which Narayanamma
confer title to the settlees respectively by reserving life interest limited
enjoyment with possession without right of alienation. When such is the case,
the Ex.A-12 to A-14 verification report of land ceiling Tribunal verification
officer, Land Reforms Tribunal, Anantapur order in holding excess land beyond
prescribed holding and Ex.A-14 notice to surrender to the excess land no way
take away the existing right of the settlee under Narayanamma muchless create
any right in favour of Rosanna over the suit schedule properties other than
1/6th share out of suit schedule properties of Narayanamma he was given
undivided under Ex.A-7 gift deed dated 15.06.1959 as discussed supra.
30) Regarding Ex.B-15 plaint, Ex.B-11 written statement of O.S.No.274 of 1973
and Ex.B-17 and Ex.B-18 decree and judgment as well as Ex.A-2 appeal judgment in
A.S.No.119 of 1979 discussed supra there is nothing more there from to favour
the continuation of the 1st defendant Rosanna or from his evidence as D.W-1 to
dispute the title of the 1st plaintiff for half of the suit schedule property in
seeking partition based on Ex.A-1 settlement deed executed by Narayanamma dated
13.04.1973 duly proved. Regarding Ex.B-2 second appeal judgment also same is
discussed supra so also Ex.B-22 relevant portion of written statement of him and
Ex.B-20 paper publication. Independent findings of the 1st appellate Court in
A.S. No.119 of 1979 against O.S. No.274 of 1973 covered by Ex.A-2, the material
on record discussed supra, establishes the 1st plaintiff's title for undivided
half over the plaint schedule property to claim the relief of partition apart
from the other plaintiffs 2 to 4 right over further 1/6th out of plaint schedule
properties, together with 2nd defendant, from remaining 1/6th each belongs to
1st defendant and 3rd defendant respectively as per Ex.A-7 and Ex.A-1
respectively. Even from the chief examination deposition of him referring to
Ex.B-21 judgment in the second appeal in S.A.No.170 of 1982. In his cross-
examination as D.W-1 he deposed that there is no documentary evidence to show
Rangappa went as illatum son-in-law and by that time he was ot even born for
saying anything and he admitted that after death of Balappa, Narayanamma's name
was mutated in the revenue records for the suit properties though he cannot say
how many years after death of Balappa, Narayanamma's name was mutated and as to
Balappa's wife Mangamma's name was never earlier mutated before mutation in name
of Narayanamma. He deposed that the suit schedule properties never stood in the
name of Rangappa and there is no documentary proof to show Rangappa paid any
land revenue or managed any properties or in possession of any of the
properties. He deposed that to his knowledge there are documents to show
Rangappa was the illatum son-in-law of Balappa. He deposed that under Ex.B-1
document executed by Narayanamma alone, adoption taken place and further deposes
that it was on that day a ceremony of giving and taking through a Purohit called
taken place. If such is the case, his claim as discussed supra on alleged
adoption on the previous day of giving and taking took place and the document
executed as an acknowledgement to it on next day is quite inconsistent and
belies said version and there is no credibility to the said version and apart
from the fact that he was hardly 6 years to say anything other than to speak
from his memory at that date as to any ceremony taken place. When the document
itself speaks taking of adoption nowhere speaks the adoption taken was by
Rangappa, husband of Narayanamma, but for by Narayanamma and nowhere speaks
followed by any ceremony muchless giving and taking and when she was incompetent
when her husband was alive even to take besides no proof of giving and thereby
it was invalid even from his saying the recitals are correct and taken so
nowhere create any right muchless over any property thereunder for alleged
adoption it is invalid so also in his referring even subsequently as adopted son
in any Lagnapatrika in performing marriage or in Ex.A-7 settlement deed dated
15.06.1959 that does not validate the adoption apart from nowhere create any
right over the property of the adoptive mother for maternal side for not any
coparcenery property of the father to claim any right by birth subject to proof
of such alleged adoption or to presume any adoption from even subsequent
reference. It is for the reason that in Vaithalingam Mudaliar V. Murugan51.
The recital in Ex.B-1 so called adoption deed no way creates any right even
taken as Persona Designata gift for not a gift with love and affection as
consideration muchless settlement muchless any conveyance even from the recital
of right and enjoyment and title retained with her and said to pass or derive
only after her life time at best to construe as a like bequeath and there are no
such recitals even as observed though on different facts but for application on
the principle to little correlation to the facts by Apex Court in Baby Ammal V.
R52only parents of a child can give and not by alone himself or any one else in
adoption and there is no presumption in favour of adoption in the absence of
evidence of giving or acceptance of any circumstances by which such a
presumption can be supported, though the adoption may have taken place long
before and been acquiesced in by all concerned, an invalid adoption does not per
se destroyed the adoptee's right in his natural family and no estoppel arises in
such a case unless in consequences of adoption the possession of party staying
up especially he denied to his attestation. It is to say presumption cannot be
drawn and even by referring by acquiescence does not give any right in the
absence of proof of giving and taking as an essential ceremony of adoption
performed or any circumstances so to presume strongly any strong circumstances
so to presume from lapse of the time to the date of evidence from the date of
adoption.
31) Even the Apex Court in Madhusudhan Das V. Narayani.B53 at paras 19 and 20
held that a person who seeks to displace succession of property alleging
adoption must discharge the burden lies upon him by proof of the factum of
adoption and its validity, free from all suspicion and so consistent and
probable as to given no information for doubting its truth. For a valid
adoption, the physical act of giving and taking is an essential requisite, a
ceremony imperative in all adoptions, whatever the cost and this requisite is
satisfied in its essence only by the actual delivery and acceptance of the boy,
even though there exists an expression of consent or an executed deed of
adoption, though Datta Homam is not necessarily contemplate in need to adopt a
boy belongs to same Gotra of adoptive father. The trial Court in fact from this
material when came to the right conclusion of there is no valid adoption and in
proof of giving and taking and Ex.A-1 and A-7 are valid and the plaintiff under
Ex.A-1 document got half undivided in the plaint schedule over partition in
order to separate possession besides other plaintiffs for the remaining as
claimed and for profits, for this Court while sitting in appeal as laid down in
the said expression of the Apex Court at para-8 there is nothing to interfere
for the reason that when there is a conflict of oral evidence on any matter in
issue its resolution turns upon the credibility of the witnesses, the general
rule is that the appellate Court should permit the findings of fact rendered by
the trial Court to prevail unless it clearly appears that some special feature
about the evidence of a particular witness has escaped the notice of the trial
Court or there is sufficient balance of improbable to displace its information
as to where the credibility lies.
32) Even coming to D.W-1's cross examination it is quite inconsistent to above
version that the adoption was under the document and the earlier version of the
adoption ceremony taken place on previous day and the further cross examination
version dated 24.02.1994 of two or three days after alleged adoption, the
document Ex.B-1 was executed and registered at Sub-Registrar's Office, Anantapur
and that on 12.11.1942 no ceremonies were performed but either on 10.11.1942 or
11.11.1942 and he does not remember whether he stated in Ex.A-9 deposition in
O.S.No.274 of 1973 that it was on the previous day, the parents of him agreed to
give him in adoption to Narayanamma and Rangappa, when it was the say where was
the time to perform the ceremony and this inconsistent evidence belies. He was
not admitted in his deposition of the suit property Exs.B-8 and B-9 receipts out
of Exs.B-8 to B-10 of the years 1979 to 1984 and even Ex.B-7 receipt of the year
1973 after disputes arose and O.S.No.274 of 1973 filed. D.W-2, Village
Administrative Officer, P.V.Gowd Ex-V.M of Konakandla during 1946 to 1984
claimed his age as 66 years by 1994. It is not believable to say he became a
V.M on 01.06.1946 before completion of 18 years of age from the age he mentioned
apart from his evidence to say through the introduced witness, he could not
depose anything regarding alleged illatum adoption of Rangappa by his father-in-
law Balappa of Chayapuram that his in-laws place is Chayapuram and he knows
Narayanamma and wife Rangappa of Chayapuram and also Rosanna and his natural
father Pullaiah and Rosanna residing at Chayapuram with his adoptive parents.
He speaks regarding possession and enjoyment whereas in Ex.B-17 judgment of O.S.
No.274 of 1973 one D.W-4 was the village officer Veerabhadra Rao and his
evidence is running contrary to the said evidence of Veerabhadra Rao. Even
coming to the land acquired Ac.1-10 cents and compensation paid there is no
record filed and Rosanna as 1st defendant D.W-1 claimed as discussed supra, the
compensation paid to Narayanamma was taken by him on her behalf and thereby D.W-
2 evidence is contra to it cannot be given credence so also regarding excess
land holding and surrender proceedings. Regarding Ex.B-3 to B-10 cist receipts
said to have been issued as discussed supra and cross-examination of D-1, D.W-1
Rosanna also Ex.B-7 to Ex.B-10 are subsequent to filing of O.S. No.274 of 1973 a
post liti document and the other receipts are only in the name of Narayanamma
and paid by Narayanamma and by her on her behalf which occurred no right over
the property and in the cross-examination he deposed that even in the No.10
adangal a post liti document there is no even mention as adopted son for his
cause mutating at the instance of Rosanna alleging based on adoption deed so
mutated and when the adoption deed was of the year 1942. His first time
mutating in 1973 after the litigation started cannot be given credence thereby
his evidence also no improves the case.
33) Thus, so far as the trial Court finding in the judgment impugned in the
appeal concerned when it came to the right conclusion having fresh in mind from
appreciation of evidence on the factual matrix rightly of the plaintiffs are
entitled to partition with separate possession and profits for this Court while
sitting in the appeal there is nothing to interfere. Accordingly point Nos.1 to
3 are answered against the appellant confirming the trial Court's decree and
Judgment and also the mesne profits arrived.
34) Even coming to the impugned revision petition on the quantum of profits
ascertained by the lower Court in the final decree proceedings in I.A.No.467 of
1998 by C.R.P.No.998 of 2002, the commissioner as per the report inspected the
properties covered by the plaint schedule of Ac.35-03 cents in items 1 to 9
which is attached to the preliminary decree and found Ac.15-00 dry land and
Ac.8-00 cultivable wet land and Ac.5-00 shown as waste land even raising pulses
like Bengal Gram by estimated the yield of 3 bags Bengal gram per acre. The
profits realized to the period from 1982 to 1985 three years prior to the suit
and from the date of suit till the date of possession and the lis is
undisputedly pending so far and possession not taken by division by metes and
bunds of the share of 1st plaintiff of 12/24 and other petitioners 2 to 4 of the
final decree petition of each 1/24 which the commissioner arrived at
Rs.1,31,750/- + Rs.10,979/- for each 1/24th share. As per the evidence of 3rd
petitioner as P.W-1 and another person of Chayapuram examined as P.W-2 besides
1st respondent as R.W-1 and another person of Chayapuram as R.W-2 as held by the
lower Court in the final decree profits order impugned in the revision that from
Ex.P-1 to P-9 No.3 adangals of fasali 1398 to 1408, those are cultivated as wet
land under high level canals and it shows the total wet cultivation is more than
19-09 cents in the land of S.Nos.1038D and 1031B ground nut or cotton or the
other commercial crops were raised during fasalis 1398 to 1401 and from 1403,
this extends also under paddy cultivation to say from original cultivation of
Ac.6-55 cents wet land it is more than 10-59 cents from fasali 1401, another
Ac.7-03 cents all in paddy cultivation and the remaining as per the adangals
disclose dry land of Ac.21-81 cents of which Ac.17-37 cents is with ground nut
cultivation and Ac.3-06 cents with coriander and Kusuma of Ac.0-42 cents besides
Jonna these are single crop based on rain fed and in fasali 1403 half of the
extent raised with Bengal gram and raised seasonal crops likewise for fasali
1404 and the other with Jowar or Coriander, Ac.3-40 cents in S.No.1021/D though
referred as waste land is not for crops raised from No.3 adangal from fasali
1398 onwrds like coriander, Bengal gram. Having regard to the above and from
the Exs.P-1 to P-9 supra relates to the years 1988 to 1998 so far as future
profits from the date of suit till 1985-86 till 1987 there is no material
placed. The Commissioner accepted the value of puffed rice at Rs.110/- per bag
and the Commissioner considered the yield of paddy crop at 40 bags per acre and
concluded the net yield around 15 to 20 bags and there from year wise from 1982
to 1987 arrived the income of Rs.33,000/- and 1988-89 and 1989-90 Rs.6,600/-,
1991-92 Rs.6,300/- for the extent above 10 to 11 acres like wise for the year
1992-93 to 1994-95 with little variation and for 1995-96 Rs.7,500/- and from
1996-97 to 2000-01 between Rs.10,000/- to Rs.11,000/- in arriving Rs.1,30,000/-
for the Ac.10-00 and odd and with notional increase of 10% of the value of the
paddy from respective years that all. Apart from it, the lower Court considered
the yield from remaining land of about Ac.23-00 of which part in the cultivation
from the years 1982-83 to 2000-01 in arriving Rs.5,83,200/- by taking the
respective yield and value of the commercial crops. It is thereby the net
amount arrived Rs.7,21,320/- and 12/24th share of 1st petitioner for half
therein and 1/24th share of each petitioners 2 to 4 accordingly therein with
interest at 6% p.a. Thereby, practically against the amount arrived including
from the contentions raised in the grounds of revision for saying the area is
drought hit or with no cultivation in the lands, there is no basic. When the
adangals that can be taken as basis for respondents are the best persons in
possession to speak otherwise by producing any accounts with them of the actual
yield and from what it was sold and net income, which they failed to produce and
from the basis of revenue record showing the estimated yield and the
cultivation, for this Court while sitting in revision, there is no illegality or
irregularity in said impugned order, muchless to reduce either the quantum
arrived or rate of interest. Accordingly the revision is also liable to be
dismissed.
35) In the result, the appeal and revision are dismissed. There is no order as
to costs.
_________________________
Dr. B. SIVA SANKARA RAO, J
Date: 20-03-2014
