(Lambu) Krishnavenamma vs (Niriki) Hanumantha Rao and Others

Pandalai, J.—The appellant was plaintiff 2 in the lower Court. The suit was orginally brought by plaintiff 1; a minor who was alleged to have

been adopted by the present appellant, who was impleaded as defendant 2. The original plaintiff having died, defendant 2 was transposed as

plaintiff 2 and has now become, on the dismissal of the suit the appellant. The suit was brought for the recovery of certain properties which

admittedly belonged to the father of the appellant, one Subba Rao, He had a son by name Hanumantha Rao who however predeceased him.

Subba Rao was, it appears, for several years before his death insane and on his death sonless in 1908 the appellant, his daughter, became his heir.

On 17th January 1912 she executed Ex. 1 to defendant ], the deceased predecessor of respondents 1 to 3, releasing all her then, rights to

defendant 1 described therein as the gnati (reversioner) and agreeing; to accept from him a maintenance for her lifetime of Rs. 5 a month. The

appellant was apparently content with this arrangement for practically the whole period of 12 years; for she gave up possession and enjoyment of

her father''s property to defendant 1. On 15th January 1924 she executed an adoption deed in respect of her husband''s brother''s son the original

plaintiff, a boy aged seven; and on the next day, i.e., 16th January, she purported to execute to him a second surrender of the same properties

which she had already surrendered to defendant 1 and this suit was brought on 17th January 1924.

Curiously, in the plaint nothing was mentioned not even by reference, about the first surrender Ex. 1 and all that is said is that on 17th January

1912 defendant 1 got into possession of the properties having paid some money to the appellant (defendant 2). Defendant 1,. the only contesting

defendant, denied the factum and validity of the plaintiffs adoption and also set up that even if the plaintiff''s adoption were valid it would have no

effect upon the surrender in his own favour which could not be attached on any ground whatsoever. Issues were framed on both these main heads

of the case. It will be seen from the judgment of the learned Judge that he has gone fully into all the issues and on the question of adoption held

against its validity. As will appear presently, it is not necessary for us to go into that. As the appellant''s learned advocate said in opening the case

he would have, in order to'' succeed, to show that the first surrender Ex. 1 was not binding upon the appellant even if there had been a valid

adoption and if he cannot succeed in doing that it would be unnecessary to go into the question of the plaintiff''s adoption. The learned advocate

argued that, the learned Judge''s opinion against the appellant upon this matter was not sustainable on three grounds:

Firstly, that defendant 1 is not a reversioner of the appellant''s ather''s family at all in whose favour alone there could be a surrender; secondly,

that the surrender was not of the entire property because it omitted one house which belonged to the estate; and thirdly, that the surrender was

vitiated by being brought about by fraud or misrepresentation or by threats of oppressive litigation employed by defendant 1 and a vakil who was

helping him, one Venkoba Rao.

We have heard the learned advocate at great length upon these points and have no hesitation in saying that the learned Judge''s conclusion on

these matters which he has dealt with fully in his judgment is perfectly justified. First, as to whether defendant 1 was a gnati or reversioner of the

appellant''s father, the matter is put beyond all possibility of doubt by the indisputable documents in the case. So long ago as 1860 a statement was

made to the inam Commissioner by Hanumantha Rao, the father of defendant 1 (vide genealogical table at p. 26 of the pleadings) that Subba Rao,

then a young man, and his uncle Bhima Rao and his father Raghavendra Rao belonged to one branch of the family and that Gurraja Rao, the

deponent''s elder brother, the deponent himself and certain others belonged to the other branch of the family. A portion of the statement sets out

the genealogical table which is exactly the same as that put forward by defendant 1. The statement relates obviously to the inam to which both the

branches of the family were equally entitled of which the appellant''s half share is item 2 in the schedule to Ex. 1. The appellant''s learned advocate

attempted to persuade us that this statement was not sufficiently proved. The document produced is a certified copy obtained from the proper

office of a statement made to a public officer in the course of his duty and the identity of the parties and the occasion when it was made have been

sufficiently proved by the evidence in the case. No other proof of such a document or its contents can be required, at this distance of time. We

consider the objection of the appellant unsustainable. This by itself would have been sufficient to overthrow the appellant''s argument on this matter

but there are more recent documents to the same effect. (After referring to these documents, his Lordship held defendant 1 was the nearest a

eversioner of Subba Rao the last male holder and proceeded). As to the argument that some property was left out of the surrender deed Ex. 1 it is

equally unfounded. The property said to have been excluded is a house but it is seen from Ex. 14= that this house had been sold so early as 1908

by Krishtamma the widow of Hanumantha Rao, to a stranger and it has remained with the stranger and his successors in title to this date. It follows

that at the time of Ex. 1 the property was not with the family at all.

But it is argued that the property belonged to the family and that the appellant should have questioned the alienation of Krishnammal and that

therefore the house was also property which should have been included. We do not think that this argument is sound. No doubt the surrender must

be of the entire property. When it is said that the surrender must of the entire property it means the entire property then in the possession and

enjoyment or control of the family. It has been held that even if some property has been left out by inadvertence it may be repaired by a

subsequent surrender. It cannot be the case in respect of properties that have been alienated away and are in possession of strangers that a widow

surrendering her rights is required to mention all possible causes of action about them at the risk of finding her act invalid. At the date of Ex. 1 all

that the appellant had, if she had it, was a chance of getting Krishnammal''s sale deed set aside. That is not property nor can the omission of such a

right of action be held to diminish from the entirety of the surrender. Besides it is not established that the property belonged to the estate of Subba

Rao and the respondent has argued that the property belonged to Hanumantha Rao. However that may be, the appellant''s argument fails.

The appellant''s third and the last point is that the surrender deed Ex. 1 was brought about as a result of fraud or misrepresentation or threats

employed to a helpless widow who was overcome by them. This is perhaps the weakest point in the appellant''s case. (After examining the

evidence, his Lordship held that the allegations of threat, fraud and misrepresentation are groundles, and proceeded). If we look at the appellant''s

conduct it leads to the same result. For practically the whole period of 12 years she was content and took no steps to disown or dispute Ex. 1.

Apparently her father-in-law and his brother who had been witnesses in Ex. 1 would not be parties to any such enterprise. Thereupon almost on

the last day of the 12th year and ob viously to prevent the appellant having herself to go to Court and set aside her own act, some ingenuous mind

conceived the idea of getting up an adoption for that purpose. The result was the adoption immediately followed by another surrender deed of the

same properties and this suit.

Under these circumstances we have no hesitation in agreeing with the learned Judge that the surrender is not open to attack on any of the

grounds set up by the appellant. It is not disputed that unless he can do so the issue on adoption need not be gone into. The appeal is dismissed

with costs of respondant 1 (defendant 3). The appellant should pay the court-fee due to Government.