Veeramallu Venkataramayya vs Bathina Venkateswara Rao @ Pamarthi Venkateswara Rao

Eswara Prasad, J.—The Appellant filed the suit for declaration of his title "and for recovery of possession of the suit properties by virtue of a gift deed in his favour said to have been executed by one Narasaiah under Ex.A-1 dated 9-3-70. The respondent resisted the suit and contended that he is the adopted son of Narasaiah and that the alleged gift in favour of the plaintiff is not true, valid and binding on the defendant.

The trial court decreed the suit holding that there was no adoption of the respondent by late Narasaiah and it was further held that the properties gifted under Ex.A-1 are the separate properties of Narasaiah. It was further held that the gift deed in favour of the plaintiff was true, valid and binding on the defendant. On appeal by the respondent, the judgment and decree of the trial court was set aside, holding that the respondent is the adopted son of Narasaiah, that the properties under Ex.A-1 were the joint family properties of late Narasaiah and the respondent and that Ex.A-1 is void, inasmuch as Narasaiah being a co-parcener, could not gift the joint family properties.

Sri G.V.N. Sastry, learned counsel for the appellant contended that the alleged adoption is not true and there is no documentary evidence to that effect. He further argued that there is no proof that the nucleus owned by Narasaiah was sufficient to acquire the property covered by Ex.A-1 and that there was no proof that the said property was blended with the joint family properties. For this proposition he placed reliance on V. Venkataswamy v. V. Radhakrishna Reddy, 1963 A.P. 476, Bhimavarapu Subba Reddy and Another Vs. B. Nagireddy and Another, and Venkata Raju v. Edukondalu, AIR 1958 AP 147 and it was further contended by the learned Counsel that under old Hindu Law, the proposition that gift by a co-parcener is void, is set at naught by S.30 of the Hindu Succession Act, 1956.

The appellate court accepted the case of the respondent that he was adopted by Narasaiah, relying on Exs.B-1 and B-2, wherein he was described as the adopted son of Narasaiah and Exs.B.14 and B.18 are also to the same effect. Further, he placed reliance on the evidence of D.Ws.1 and 4 in arriving at that said conclusion. This being a finding of fact, arrived at on an appreciation of oral and documentary evidence, I see no reason to differ from the said finding in the second appeal.

The learned Counsel for the appellant Sri Sastry strenuously contended that the respondent failed to prove that the property under Ex.A-1 was the joint family property and there was no evidence to show that there was any nucleus of ancestral property and much less proved that the income from the nucleus was sufficient to give an impress of joint family property. He further contended that the respondent failed to prove that the said property has blended with the joint family property. The learned Judge held that the property and Ex.A-1 belongs to the joint family comprising Narasaiah and the respondent, placing reliance on the evidence of D.Ws.1 and 3 in support of Exs.B-1 and B-2. The decisions relied on by the learned Counsel for the appellant are not of much use to him, inasmuch as the recital in Ex.B-1 is not the only piece of evidence on which the learned Judge placed reliance in finding that the properties in question are the joint family properties. He has relied on the oral evidence as well as the documentary evidence in coming to that conclusion. The proposition of law enunciated in the decisions referred to by the learned counsel are unexceptionable and clear. But in the present case, the court below has considered the documentary and oral evidence in arriving at the said find. The further submission of the learned Counsel that the lower Court failed to refer to Ex.A-3 notice dated 20-11-69 said to have been issued by Narasaiah to the defendant wherein he repudiated that the respondent was adopted by him and that the properties were the joint family properties is not tenable. The appendix of evidence in the judgment of the trial court shows that Ex.A-3 is an undelivered registered notice, as such no reliance can be placed on Ex.A-13 which was not communicated to the respondent. The mere fact that the appellate court did not refer to the document will not vitiate the finding.

The question whether a gift by a coparcener of the joint family properties is. valid or void is stated by the Supreme Court in Mukund Singh v. Wazir Singh and Venkata Subbamma. It was held therein that S.30 of the Hindu Succession Act saves only testamentary dispositions of joint family properties by coparceners and that disposals by gifts and not saved and that such gifts are void. In that view of the matter Ex.A-1 is void.

Before parting with the appeal. I would like to refer to the observations of the Supreme Court in Venkata Subbaiah''s case (5''supra) which run thus:

"When a particular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances. It is for the Legislature to consider whether it should change such law or not. It may be legitimately presumed that before the passing of the Hindu Succession Act, 1956, the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenery property but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided interest by Section 30 of the Hindu Succession Act, altered the law against making of gift by a coparcener of his undivided interest."

After the said observations have been made, four years have gone by, but we do not find any response from the Legislature. It will be desirable for the Legislature to take into consideration the observations of the Supreme Court and to make necessary law with regard to gifts of coparcenery property by Hindus.

In view of the finding that the respondent was adopted by late Narasaiah and became his adopted son and the properties are the joint family properties and that the gift in favour of the appellant is void, the second appeal fails and is dismissed. No order as to costs.