Andhra HC (Pre-Telangana)
Pabbathi Reddy Sudarshan Reddy vs Pabbathi Reddy Sashirekhamma on 10 October, 1995
Equivalent citations: AIR1996AP300, AIR 1996 ANDHRA PRADESH 300, (1996) 2 ANDHWR 490
ORDER Lingaraja Rath, J.
1. These two appeals arise out of the common judgment of the learned single Judge delivered in A.S. Nos. 1850 and 1851 of 1980 and, hence, are disposed of by this common judgment.
2. The two suits out of which the appeals arise are -- O.S. No. 322 of 1975 and O.S. No. 60 of 1977. The first suit wasifiled by the appellants in L.P.A. No. 59 of 1988 i.e., Pabbathi Reddy Sudarshan Reddy, Pabbathi Reddy Sanjeeva Reddy and Pabbathi Reddy Narayana Reddy as the plaintiffs against the sole respondent -- Pabbathi Reddy Sashire-khamma as the sole defendant. The suit had been filed by them claiming themselves as the purchasers from one Shakuntalamma of the 5/6th share of the plaint 'B' schedule property. Since the claim to the property was based upon the allegation of adoption by Sashirekhamma of Shakuntalamma's first husband-Amrutha Reddy, Sashirekhamma filed second suit -- O.S. No. 60 of 1977 --against Pabbathi Reddy Sanjeeva Reddy as defendant No. 1, Pabbathi Reddy Narayana Roddy as defendant No. 4 and five others viz., defendants 2, 3, 5, 6 and 7 for declaratioin of her being the sole owner of the property and of there being no adoption by her of late Amrutha Reddy. The case of the appellants as plaintiffs was that Sashirekhamma had married one Narayana Reddy, who had predeceased her after giving her authority to adopt a son and she had exercised the authority in favour of Amrutha Reddy, son of an agnate Rami Reddy. Amrutha Reddy had married Shakuntalamma who gave birth, during the wedlock to twins who had died shortly after their birth and thereafter Amrutha Reddy also died. Shakuntalamma executed a registered sale deed -- Ex. A-l on 16-6-1975 in favour of the plaintiffs in respect of 5/6th share of the plaint 'B' schedule property. The suit had been filed for partition and separate possession of the property. As earlier stated, the second suit was filed by Sashirekhamma seeking declaration against adoption and of her being the sole owner of the property.
3. The learned trial Court who tried both the suits and received evidence of both the suits in O.S. No. 322 of 1975, decreed the first suit but dismissed the second one. Sashirekhamma carried appeals against both the decrees, which were registered as A.S. Nos. 1850 and 1851 of 1980 respectively. The appeals having been allowed by the learned single Judge, the present L.P.As. have been preferred. It may be mentioned that so far as O.S.No. 322 of 1975 is concerned, it had been partly decreed by the trial Court holding that Shakuntalamma was entitled only to 1/2 share of the properties as the story of she having been given birth to twins was disbelieved.
4. The marriage of Shakuntalamma with Amrutha Reddy being never in dispute, the only question substantially falling for decision is whether Amrutha Reddy had been adopted by Sashirekhamma and whether there was authority in her to make such adoption. While the question was answered in the affirmative by the learned trial Court, the learned single Judge took the reverse view.
5. The matter has-been argued at length before us and we have also examined the ' evidence, both oral and documentary, in detail as the Letters Patent Appeal is one both on facts and law.
6. A perusal of the judgment of the learned single Judge shows the reversing view regarding the adoption to have been taken as the plaintiff did not come with any definite date of adoption, the evidence of P. Ws. 4 and 5 being not acceptable while that of D.W. 1 --the respondent was, and the inference from the documents -- Exs. A-2, A-3, A-4 and A-5, as had been drawn by the trial Court being not available to be drawn. It is undoubtedly true that strict proof is necessary to prove adoption as adoption, if proved, displaces the natural line of succession. Adoption to be proved necessitates the establishment of the ingredients of adoption, but, as has been observed by Mulla in Sixteenth Edition, Article 512, summarising the decisions of Courts, that where there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained and that it stands to reason that after a very long terms of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity.
7. PWs. 4 and 5 are admittedly the witnesses who spoke about the adoption of Amrutha Reddy to that of Sashirekhamma. P.W. 4 was 73 years old at the time of his examination and was admittedly the first cousin of Sashirekhamma's husband Nara-yana Reddy. His evidence was that Narayana Reddy died when he was about 35 years, was able to talk till his last moments and before death he had authorised Sashirekhamma to take a boy from his agnates in adoption to him. Four years after his death, Sashirekhamma took Amrutha Reddy in adoption to her late husband and that the act of adoption was performed by her asking Rami Reddy, natural father of Amrutha Reddy, to give him in adoption and Rami Reddy agreed for the proposal and physically handed over Amrutha Reddy to her. Arnrutha Reddy was then about 10 years old. Since then he lived in the house of Sashirekhamma and was married at the age of 20 years to Shakunthalamma. The agnates of the family and the lady members were present at the time of adoption. The evidence of P.W. 5, aged about 75 years old at the time of his examination, who was also the first cousin to the husband of Sashirekhamma, was also to the same effect that she had asked Amrutha Reddy to be given in adoption and that Rami Reddy had given the boy and she had taken him and that the agnates and the female members were present. There is nothing in the evidence of these two witnesses to discredit them. In the cross-examination nothing substantial was brought out to demolish their statements and, in fact, the only thing done in the cross-examination so as to discredit the witnesses was to make suggestions of enmity. It appears in the judgment of the learned single Judge, as ground for rejecting their evidence, that the witnesses were admittedly agnates and close relatives of the respondents (i.e., the appellants here). That is hardly a reason to discard the evidence as the two witnesses are closely related to Sashirekhamma and there could be no reason for them to depose against her. If at all the witnesses were also relatives of the plaintiffs, there was no reason for them to prefer the appellants than Sashirekhamma and they being equally related, as is being submitted before us by Mr. C. V. Mohan Reddy, learned counsel for the respondent, they would be more interested to depose the truth objectively. As against such evidence led on behalf of the appellants, the respondent examined D.W. 1, the mother of Shakuntalamma, as D.W. 2. The effect of her evidence was that she did not know Sashirekhamma and that she had not come to attend the marriage of her daughter with Amrutha Reddy. She also said that she did not know if Amrutha Reddy was the adopted son of Sashirekhamma. Plainly D.W. 2 was not a truthful witness since she being a witness examined by Sashirekhamma, it is hardly ever believable that she did not know her. She can also be. hardly taken to be speaking the truth when she said that she did not know if Amrutha Reddy was adopted to Sashirekhamma. She, as the mother-in-law of Amrutha Reddy, was one of the best witnesses to deny the adoption categorically but, on the one hand, she denies any knowledge or acquaintance with Sashire-khamma, and on the other hand says that she did not know if Amrutha Reddy had been adopted by the respondent.
8. Mr. C. V. Mohan Reddy, learned counsel for the respondent submits that as the onus to establish the adoption is upon the plaintiffs, D. W. 2 could not have volunteered the statement denying the adoption and that no exception can be taken for her having not stated such fact. We are not inclined to agree to accept the submission as by the time D.W. 2 was examined, already evidence had been led, both oral and documentary, purporting to show the fact of adoption and the onus was by then on the defendant to lead evidence 10 disprove such fact. It was hence natural for D.W. 2 to have categorically denied, if that was the truth, any adoption of Amrutha Reddy by Sashirekhamma.
9. The other ground on which the evidence of P.Ws. 4 and 5 was discarded is their statement that the ceremony of adoption was performed at the house of Sahirekhamma a day before the marriage of Amrutha Reddy with Shakuntalamma. The learned single Judge was of the view that the statement was contradictory to the earlier statement of adoption having been taken place when Amrutha Reddy was 9 to 10'years old. With great respect we are unable to fendorse the view as 'Datta Homam', that is the adoption ceremony, is not an essential part of adoption. It was held in Venkata v. Subhadra, (ILR (1884) 7 Mad 548) that Datta Homam may be performed at any time after the physical act of giving and receiving The essential ingredient of adoption is the physical act of giving and receiving of the boy in adoption. P.Ws. 4 and 5 categorically stated about such facts. It might have been thought of, as an additional performance, to perform the adoption ceremony before the marriage. But that itself would not make the adoption effective from that date. The adoption was pre-Act one and we are unable to agree that the performance of the ceremony a day before the marriage would post date it or that the adoption is invalid under Section 10(1V) of the Hindu Adoption and Maintenance Act, 1956.
10. In this background of oral evidence, the documentary evidence has to be considered. Ex. A-2 is the Khasra Pahani of the year 1954-55 where Amrutha Reddy has been 'shown as the land-holder in respect of the properties of Narayana Reddy. Ex. A-3, which is the Holding Register, is of no help to support the adoption as nothing is mentioned there regarding such fact. Ex. A-4 is the Phaisal Patti of the year 1967-68 showing Sashirekhamma as the mother of Amrutha Reddy. Doubtless, Phaisal Patti is not shown to have any statutory basis, but it is admitted that its preparation is a step in aid of the preparation of Pahani and form the basis of such preparation. The alienation on the basis of which the appellants claim the property is of the year 1975 and the suit is of the same year. In 1967-68 no dispute between Sashirekhamma and Amrutha Reddy is shown to have existed for him to have been wise enough to create documents manipulating the status of an adopted son. The Phaisal Patti was undoubtedly prepared by the Tahsildar as an official act and a presumption would attach to it, under illustration (e) of Section 114 of the Indian Evidence Act, 1872, of the preparation of it to have been regularly performed. The entry made lends credence to the oral evidence led. Ex. A-5 and Ex. A-6 are respectively judgment and Decree in O.S. No. 74 of 1956. In the plaint, Amrutha Reddy was described as the son of Sashirekhamma as also in the decree. In the judgment under appeal reliance was not placed on the plaint since the original plaint, though was marked as Ex. C-l, in the trial Court, was not transmitted to the High Court and the judgment of the trial Court showed that white the plaint had been originally filed with both Sashirekhamma and Amrutha Reddy as joint plaintiffs, yet it had been corrected to substitute the words 'I' and 'me' for the words 'we' and 'us'. The view was taken hence that they filing of the suit was the individual act of Amrutha Reddy without Sashirekhamma playing any part in it. While that is so, yet Ex. A-6, the decree, shows both Amrutha Reddy and Sashirekhamma as the plaintiffs. It is not known under what circumstances the trial Court did not transmit the plaint. The appellants also did not take any steps to secure the transmission of the plaint as forming part of the record to this Court. No steps have been taken even after the appeals were allowed by the learned single Judge, to secure Ex. C-l and, consequently, we are unable to refer the plaint in original. But, because of the view we have taken, it is hardly necessary to adjourn the case to obtain the plaint. In 1956 there was absolutely not even the smoke of a doubt of any dispute between Sashirekham-ma and Amrutha Reddy. The fact that Amrutha Reddy then described himself as the son of Sashirekhamma cannot be viewed as a mala fide act performed with intent to grab the property of Sashirekhamma. That was a suit filed for declaration of title and perpetual injunction in respect of some property owned by Amrutha Reddy and Sashirekhamma against one P. Deva Reddy and others. The suit was decreed ex parte.
11. From the combined effect of all such documents and oral evidence, we are of the view that the finding regarding adoption could not have been reversed and that Amrutha Reddy had in fact been adopted by Sashirekhamma. Particularly, so far as the evidence of P. Ws. 4 and 5 are concerned, the trial Court had accepted their evidence as truthful and trustworthy. It had been observed in Laxminarayana v. Returning Officer, that "the power of the appellate Court is very wide. It can reappraise the evidence and reverse the trial Court's findings of fact. But like any other power it is not unconfined: it is subject to certain inherent limitations in relation to a conclusion of fact. While the trial Court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour, the appellate Court is confined to their evidence on record. Accordingly, "the view of the trial Judge as to where credibility lies in entitled to great weight" (See Veeraswami v. Narayya, AIR 1949 PC 32). However, the appellate Court may interfere with a finding of fact if the trial Court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.
12. Our discussion would show, there is nothing in the judgment of the trial Court to show that any material aspect of the evidence had been overlooked or that there was a palpable fallacy in reaching the conclusions on the analysis of the evidence. The learned Judge also took the view that even if Amrutha Reddy is taken as the adopted son of Sashirekhamma, yet Shakuntalamma admittedly having married out of the family shortly after the husband's death, she must be taken to have abandoned the properties and, hence, had no competence to alienate the properties, for which reason the appellants would not be able to get title through her. It appears from the evidence on record that Amrutha Reddy had died in 1964. The sale deed was executed in 1975. There was no plea in O.S. No. 60 of 1977 filed by Sashirekhamma that by virtue of any abandonment by Shakuntalamma she had prescribed hostile title against her. Such a defence was also not taken in O.S. No. 322 of 1975. No plea of abandonment was also raised in the case and no issue was framed in that respect.
13. Abandonment of property is not a mode of permanent relinquishment of right to own the property unless by virtue of such abandonment adverse title is prescribed against the title holder. The known methods of divestment of right to property are alienations made under the Transfer of Property Act or losing such title by allowing another to build up a title by adverse possession. An alienation of property when admittedly its value is more than Rs. 100/- compulsorily attracts the provisions of Section 17 of the Indian Registration Act and the document of alienation unless registered makes the transaction void. There being no case of any alienations to have been made by Shakuntalamma except in 1975 in favour of the appellants, and there not having been any case of adverse possession, the plaintiffs are not disentitled to get the decree sought for on the supposed basis of abandonment by Shakuntalamma.
14. In the result, the appeals succeed with costs throughout. The impugned judgment is reversed and that of the learned trial Court is restored.
15. Appeal allowed.