Peethal Srinivasa Rao vs Kusuma Peddi Raju and Others

B. Prakash Rao, J.—These two appeals arise out of the common judgment inO.S. Nos. 4 and 5 of 1980 dated 29th March, 1985 on the file of the Subordinate Judge,Bhimavaram. O.S. No. 4 of 1980 was originally filed by Kusuma Krishnaiah againstChilakapati Gangamma, seeking partition of the schedule properties into two equalshares. Pending the suit, both the plaintiff and defendant died and the appellant wasbrought on record as the legal representative of the defendant and the respondents1 to 3 as the legal representatives of the plaintiff. Similarly, O.S. No. 5 of 1980 wasfiled by Chilakapati Gangamma against Kusuma Krishnaiah seeking a declarationof her right and for recovery of possession of the suit land. On the similar lines asin O.S. No. 4 of 1980, the parties having died, the legal representatives were broughton record.

The claim of the plaintiff in O.S. No. 4 of 1980 is that the plaint scheduleproperties belonged to late Chilakapati Surayya, s/o Swamy, who executed aregistered Will Deed dated 6.4.1958 in a sound and disposing state of mind andsubsequently, he died on 18.7.1969. The original plaintiff is the sister''s son and defendant No. 1 is the wife''s sister''s son of late Surayya and defendant No. 2 is thewife of Surayya. The properties being in joint possession and some attempts beingmade to secrete away, the suit was filed for partition.

Defendant No. 1 in the written statement claimed that he was adopted bythe defendant No. 2 and late Surayya when he was a child and thus known as theadopted son of late Surayya and defendant No. 2. Surayya and the defendants arethe members of the joint family and during the life-time of Surayya itself someproperties were given to the plaintiff like bullock-cart and bullocks, etc., afteracknowledgement. However, by the date of the death of Surayya, none of thosewere existing. Since the defendant No. 2 has a right of maintenance in the scheduleproperties, the Will Deed dated 6.4.1958 contemplates that the plaintiff and thedefendant No. 1 should enjoy the properties only after the death of Gangamma.Therefore, the rights of Gangamma in the properties have become enlarged and shebecame the absolute owner of those properties. She executed a Will Deed on5.5.1972 bequeathing the properties to defendant No. 1.

The defendant No. 2 claimed that the first defendant was adopted by herand her husband long back and the Will Deed was executed on 6.4.1958 in a soundand disposing state of mind and it comes into operation only after the death of thesecond defendant. Therefore, the claim of the plaintiff that soon after the death ofSurayya, he became entitled to the properties is not correct and no right vests duringthe life-time of the second defendant. Late Surayya had already given someproperties like bullock-cart, bulls, etc., to the plaintiff and defendant No. 1 and theschedule properties were not in possession of Surayya by the time of his deathespecially, items 1 to 3, 6, 10, 12 to 17. Later on, the second plaintiff filed a rejoinderdenying the allegations made in the written statements and claimed that whateverproperties of Surayya are there, those devolved equally on the first plaintiff anddefendant Nos. 1 and 2 did not acquire any rights in the properties and no lifeinterest is created under the Will. The second Will dated 5.5.1972 was denied as thesecond defendant was not in a sound and disposing state of mind as she wassuffering from paralysis, bed-ridden and in coma.

The claim as made in O.S. No. 5 of 1980 by Chilakapati Gangamma almost runs on the self-same lines as alleged in the written statements filed in O.S. No. 4of 1980. It was reiterated that as per the Will Deed, the rights were enlarged intoabsolute one as per Section 14(1) of the Hindu Succession Act as she had the rightof maintenance over the properties. Therefore, the Will executed by Surayya doesnot become operative. Since the defendant therein did not accede to the request ofher''s to give the crops or their value to the first plaintiff, it resulted in issuing ofnotice dated 6.10.1969 which was falsely got replied on 1.11.1969. Therefore, therelief was for declaration and possession.

The defendant therein reiterated the same claim as made in the plaint in O.S.No. 4 of 1980. It was claimed that during the life-time of Surayya, an extent of Ac.5.59 cents were divided into two equal shares and the maktha was received by himduring his life-time. After his death, the said division was confirmed with theconsent of the plaintiff, who was only a life estate holder and she leased theproperties to the defendant on maktha of 15 bags without any share for the landlord.The plaintiff has, thus, no right and the suit is not maintainable since the plaintiffhad to approach the tenancy Courts and, therefore, requested for the dismissal ofthe suit.

The defendant No. 2 therein has claimed that Srinivas Rao is not the adoptedson of Surayya and during the life-time of Surayya itself, an extent of Ac. 5.59 centswas divided into two equal shares and given to Srinivas Rao and himself which wassubsequently confirmed. Defendant No. 2 purchased Ac. 0-29 cents in R.S. No. 201/4 for valid consideration and as defendant No. 1 has got a vested remainder in theproperties, the properties are in the hands of defendant No. 1 and the defendant No.2 is not in possession. Hence, he sought for dismissal of the suit. However, anadditional written statement was filed by the first defendant stating that thedeceased first plaintiff had only life interest and vested remainder to the defendantand since she died during the pendency of the suit, it came to an end and as suchthe relief of possession has become infructuous and the suit is liable to be dismissed.The execution of the Will dated 5.5.1972 was denied and it is alleged that in viewof the illness, Gangamma could not have executed the said Will and that it is a forgedone.

The third defendant filed an additional written statement stating that thefirst plaintiff during her life-time never made any claim as to the absolute rights inthe suit lands which are only the self-acquired property of Chilakapati Surayya.During his life-time, he divided the properties into two equal shares. The claim thatthe rights of the first plaintiff became enlarged into an absolute estate is denied. LateSurayya had already purchased Ac. 0.60 cents and Ac. 1.90 cents in the names of thefirst plaintiff with his monies towards her maintenance and, therefore, the questionof any property being given towards maintenance or any vesting as such does notarise and late Surayya was under no obligation to provide any separate maintenance to the first plaintiff. The Will dated 5.5.1972 is a forged one.

Initially, in both the suits, different issues were framed but, subsequently,it appears that on a joint memo filed by both the sides, the evidence was recordedin O.S. No. 4 of 1980 and both the suits were clubbed together.

For the sake of convenience, the Trial Court has recast the issues in boththe suits after hearing the arguments, which are as under :

" (1) Whether the adoption of Chilakapati Srinivasa Rao by late ChilakapatiSurayya and Gangamma is true and valid and, if so, whether theregistered Will Deed dated 6.4.1958 is not valid on the ground that itwas executed by a member of joint family ?

(2) Whether the plaint schedule property in O.S. No. 5 of 1980 became theabsolute property of the 1st plaintiff u/s 14(1) of HinduSuccession Act as per the Will set up by the defendant ?

(3) Whether all or any of the plaint schedule movables are in existence andwhat are their values ?

(4) Whether late Gangamma executed a Will dated 5.5.1972 in a sound anddisposing state of mind and whether, D-l in O.S. No. 4/80 and the 2ndplaintiff in O.S. No. 5 of 1980 is entitled to recover the propertiesmentioned in the plaint schedule in O.S. No. 5 of 1980 ?

(5) Whether D-l in O.S. No. 5/80 was a tenant of the suit land in thatsuit?

(6) To what relief ?"

The plaintiff had examined P.Ws. 1 to 3 and defendants examined D.Ws. 1 to 5 and marked Exs. A-l to A-4 and B-l to B-5 respectively. The Trial Court ona consideration of the evidence on record has decreed the suit O.S. No. 4 of 1980 anddismissed O.S. No. 5 of 1980 holding that the adoption of Chilakapati Srinivasa Raois not true and the same is not established and the registered Will Deed dated6.4.1958 in Ex. B-l is valid and the properties bequeathed thereunder are theexclusive properties of the late Surayya and further holding that late Gangammahad no right u/s 14 of the Hindu Succession Act as the intention of thetestator was only that the legatees should divide the properties after his death andGangamma was never given any right over these properties.

In these appeals, the learned Counsel appearing for the appellant, attacking the findings of the Trial Court, contended that the lower Court has erroneouslyheld that there was no adoption and the non-applicability of Section 14 of the HinduSuccession Act. The learned Counsel has pointed out that the rejection of adoptionon the ground that it was an inter-caste one is unwarranted. The mother being nota Christian, there is no bar for adoption and the parties being Sudras, there is norequirement of ceremonies. Further, that the very adoption being an ancient one asD.W. 1 was hardly aged 3 or 4 years, it is not possible to get any evidence and theevidence of D.W. 5 has been erroneously brushed aside. Stress was laid on Exs. B-2 and B-4 dated 2.3.1955 and 3.10.1953 respectively which were marked throughD.W. 1, which are sale deeds wherein the appellant was described as the adoptedson and the said documents being sufficiently old and the long silence thereaftercreate an estoppel and, therefore, a presumption has to be drawn in favour of theadoption. He sought to rely on the decision in Voleti Venkata Rama Rao Vs. Kasapragada Bhaskararao and Others, , and L. Debi Prasad (Dead) by Lrs. Vs. Tribeni Devi and Others, .

On the question of applicability of Section 14 of the Hindu Succession Act,it was argued that the mother had a right of maintenance and as such the life estategiven under Ex. B-l had enlarged into an absolute estate under the said provisionand, the Will dated 5.5.1972 in Ex. B-5 is perfectly valid and correct.

Mr. C.C.S. Sastry, learned Counsel appearing on behalf of the respondentherein, contended that Gangamma had no pre-existing right of maintenance and Ex..B-l only postpones the vesting and she having already been provided with theproperties under Exs. A-3 and A-4, late Surayya is not under an obligation tomaintain her. Further the claim u/s 14 of the Hindu Succession Act isinconsistent as the original defendant has not taken any such plea in the writtenstatement but subsequently the legal representatives have sought to incorporate thesame which runs contrary to the plea already taken by the deceased. The mereexpressions shown in Exs. B-2 and B-4 to which the respondents not being a partywould not confer any right unless a right as such exists and is proved. Admittedly,the father of the appellant was a Christian and, therefore, there could not have anysuch adoption between a Hindu and a Christian, which is contrary to the wellestablished principles under the Hindu Law. ,

In view of the above rival contentions, the questions which fall forconsideration in these appeals are :

"(1) Whether Srinivasa Rao is the adopted son of late Surayya andGangamma ? and

(2) Whether under Ex. B-l dated 6.4.1958, Gangamma is vested with anyabsolute estate ?

Re. (1):

Both the Counsels have taken me through the entire evidence and thedocuments on record. As regards the question of adoption of the appellant herein,the only evidence available on record is that of D.Ws. 1,2 and 5 and the documentsin Exs. B-2 and B-4. D.W. 1 is the defendant No. 1 in O.S. No. 4 of 1980 and plaintiffNo. 2 in O.S. No. 5 of 1980 and who, admittedly, was too young to remember anyfacts or throw any light as such on the question of adoption. D.W. 2 though soughtto state that the appellant is the adopted son, he pleaded total ignorance as to thedate of adoption, the date of the death of Surayya and Gangamma and from hiscross-examination, it does not throw any light to show that really D.W. 2 is havingany personal acquaintance with the family and that he was a witness to any suchadoption. The evidence of D.W. 5 does not specify on the ceremonies or theformalities observed. In the absence of such positive evidence, it is very difficult tosustain the claim of adoption, and irrespective of the fact whether there was reallyany such inter-caste adoption or not, it may not have relevance as long as the veryfactum of adoption is proved. It is well settled that normally a child''s caste orreligion goes with that of his father. However, in this case, the factum ofadoption through ceremonies as mandatorily required under the Hindu Law or anycustomary procedure or other formalities having not been properly established, itcannot be said that the appellant is the adopted son of Chilakapati Surayya. Theprinciples laid down in Venkata Rama Rao'' s case (supra) and Debi Prasad'' s case(supra) regarding presumption would not arise in this case as basically there is noevidence of the factum of adoption and there is no basis for drawing any suchpresumption.

Re. (2): 17. The other question centres around the much canvassed plea u/s 14 of the Hindu Succession Act and which totally surrounds around Ex. Bl dated 6.4.1958. A reading of Ex. B-l shows that late Surayya has bequeathed the propertiesequally in favour of both Chilakapati Srinivasa Rao and Krishnaiah. However, itwas specifically added that the same would be enjoyed only after his death and thedeath of his wife Gangamma. Prima facie, this would show that nothing was soughtto be given in any form whatsoever - towards either life estate or otherwise ormaintenance - to Gangamma. However, in Ex. B-l, the portion where it waswritten in Telugu that "xxx xxx xxx" was struck off again by pen whichspecifically contemplates for the maintenance of Gangamma. If the said recital istaken on its face value by taking note of the deleted portion, it shows that the bequestis not for maintenance nor any such intention was really made. This itself wouldsuffice to reject plea u/s 14(1) of the Hindu Succession Act. The said Willwas executed on 6.4.1958 and Surayya died on 18.7.1969. The plaintiff No. 1 anddefendant No. 1 are not strangers to the family - the plaintiff No. 1 being the sister''sson and the defendant No. 1 being the wife''s sister''s son of Surayya. Apparently,the couple i.e., Surayya and Gangamma had no issues and these boys being veryclose to both of them, the said bequest was done only by giving effect thereto afterthe death of both of them. Even though it was sought to be contested that a lifeinterest was created in favour of Gangamma making a provision for her mainte-nance and, therefore, the said right gets enlarged into an absolute one u/s 14(1), the totality of the circumstances, the relationship of the parties and theexpressions used in the very document and more so the deleted portion, wouldamply show that there was no such intention and the giving effect to was onlypostponed till the death of both of them. This conclusion further gets support inview of the fact that Gangamma has been given certain properties under Exs. A-3and A-4 towards her maintenance. All along and after the date of the document bothSurayya and Gangamma lived together without any complaints of whatsoevernature, therefore there is no obligation on the part of Surayya to maintain Gangamma.Gangamma died during the pendency of the proceedings and the present disputeis only between the two legatees under Ex. B-l. As evident from the very pleadings,the plea of enlargement of estate was sought to be taken at a very belated stage bythe appellant hereinafter he was added as the legal representative, which would goto show that it was pressed into service only to get the properties and thus theexistence of the Will Deed of Gangamma was being pleaded. Therefore, in view ofthe fact that Gangamma had no right as such, it is not necessary to go into the validityor correctness of the Will Deed executed by her in Ex. B-5. The principles asenunciated in V. Tulasamma v. V. Sesha Reddi AIR 1977 SC 1944, do not supportthe claim of the appellant as regards the enlargement of the estate.

In view of the above reasons, it has to be held that Gangamma did not getany absolute estate u/s 14(1) of the Hindu Succession Act as such.

Thus, there are no merits in both the appeals and the same are dismissed.However, in the circumstances, there will be no order as to costs.