Andhra HC (Pre-Telangana)
Mallannagari Mallareddy And Anr. vs Mallannagari Susheela And Anr. on 12 September, 2006
Equivalent citations: 2006(6)ALD485, 2006(6)ALT733
JUDGMENT P.S. Narayana, J.
1. These two second appeals are filed as against the judgment and decree made in AS No. 30 of 1988, dated 16-6-1994 on the file of Additional District Judge, Nizamabad. The appellants in AS No. 30 of 1988 aforesaid had preferred Second Appeal No. 456 of 1994 aggrieved by the relief granted substantially confirming the findings of the Court of first instance made in OS No. 123 of 1979 on the file of District Munsif, Kamareddy, and the plaintiffs being aggrieved of partly reversing certain findings of the Court of first instance preferred Second Appeal No. 22 of 1996 in particular questioning negativing of the relief in relation to the plaint 'B' schedule property.
2. On 28-9-1994 this Court made the following order:
Admit. Ground Nos. a, b, c are the substantial questions of law raised in the appeal.
The said grounds a, b, c read as hereunder:
(a) Whether a document (Ex.A5) the recitals of which speak of a transfer inter vivos can be treated as a 'Will' ?
(b) Whether the properties belonging to the parents of the deceased wife are available for partition at the instance of the alleged second wife, even after the plea of the husband being the illatom son-in-law is rejected ?
(c) Whether in a suit for partition, the Courts below can in effect enforce a Will ?
3. On 12-2-1996 in Second Appeal No. 22 of 1996 this Court made the following order:
Admit in view of the fact that the respondents filed an appeal SA No. 456 of 1994 which was already admitted as dealing of both the matters together would be convinced and would serve the ends of justice to arrive at a proper decision. Post along with SA No. 456 of 1994. Issue notice to the respondents returnable in four weeks.
Hence, from the record, it is clear that in Second Appeal No. 22 of 1996 the Court formulated no specific substantial questions of law at the time of admission of the appeal. However, in ground No. 2(i) and (ii) the following substantial questions of law have been specified.
(i) The suit filed by the plaintiffs was decreed in respect of the agricultural lands except the status of wife and daughter of the deceased Ramreddy, who was the illatom son-in-law of late Balram. The same status cannot be denied in respect of the other joint family properties, namely, 'B' schedule properties just because of the defendants mischievous plea of denial.
(ii) The Court below did not examine the evidence in the right perspective and did not apply the principles of succession in the face of the admitted facts of the case. The judgment under appeal is not sustainable and liable to be set aside.
4. Section 100 of the Code of Civil Procedure (hereinafter in short referred to as the Code) dealing with second appeals reads as hereunder:
Second Appeal:
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal or any other substantial question of law, not formulated by it, if it is satisfied that the case involves such questions.
Strong reliance was placed on the decision of the Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. .
5. It is needless to say that Sub-section (4) of Section 100 of the Code specifies that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (5) of Section 100 of the Code specifies that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. The proviso further clarifies that provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal or any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
6. Sri J, Prabhakar, learned Counsel representing the appellants in Second Appeal No. 456 of 1994 had formulated the following substantial questions of law, which read as hereunder:
1. Whether a document (Ex.A5) the recitals of which speak of a transfer inter vivos can be treated as a Will ?
2. Whether the properties belonging to the parents of the deceased wife are available for partition at the instance of the alleged second wife, even after the plea of the husband being the illatom son-in-law is rejected ?
3. Whether the plaintiff who comes forward with the case of a settlement in the pleadings and the evidence adduced therein, can latter on lay his claim claiming the document to be a Will ?
4. Whether in the absence of a specific pleading as to the nature and nomenclature of Ex.A5 as Will, was it open to the trial Court and the first appellate Court to characterize the said document as a Will and decree the suit on the strength of such finding ?
5. Whether it is open to civil Court to decree a suit on its own basis and conclusions de hors the pleadings and evidence ?
6. Whether the customary mode of illatom adoption in a particular caste/ community is not required to be established by pleadings and evidence ?
7. Whether in the absence of satisfaction of the provisions of Sections 2(h) and 68 of the Indian Succession Act and Section 63 of Indian Evidence Act, were the Courts justified in terming Ex.A5 as a Will and decree the suit accordingly ?
8. Whether the earlier recitals in Ex.A5 will not prevail over the subsequent recitals (earlier recitals categorically show it to be a settlement, wherein there was settlement of 50% of the property) ?
Contentions Advanced by Sri J. Prabbakar, Learned Counsel for appellants in Second Appeal No. 456 of 1994 and the Respondents in Second Appeal No. 22 of 1996.
7. The learned Counsel for the appellants placed strong reliance on several decisions in support of his submissions. The learned Counsel would maintain that it is not the case of the plaintiff at all that Ex.A5 is a Will, but they proceeded on the ground that the same is settlement and the entire evidence was also let in that direction. However, the Courts below had made out a new case recording concurrent finding that Ex.A5 is a Will and basing on the same, the relief had been granted and hence, the same cannot be sustained. The learned Counsel also pointed out to the relevant portions of the evidence in this regard. The learned Counsel in the alternative would submit that in the event Ex.A5 to be treated as a Will, the same had not been proved in accordance with law. The learned Counsel made elaborate submissions in relation to the relevant provisions of the Indian Succession Act, 1925 and the Indian Evidence Act, 1872 as well. The Counsel also had taken this Court through the contents of Ex.A5 and would explain that the life interest and the right of residence and the other recitals by themselves, it cannot be styled to be a Will at all as the Will does not contain such recitals and at the best it can be said to be settlement burdened with some obligation and nothing more and nothing beyond. The learned Counsel also had explained the ingredients to be satisfied in the case of a Will and hence, the Counsel would maintain that by virtue of Ex.A5 the plaintiff cannot get any relief at all since no rights can flow from such a document, Ex.A5. Hence, the Counsel would contend that the very interpretation of Ex.A5 by both the Courts below being incorrect interpretation, it being a substantial question of law, the same can be agitated despite the fact that the concurrent findings had been recorded. The learned Counsel also made certain other submissions regarding the calculation of shares and also in relation to 'B' schedule property, which stands in the name of the 2nd defendant and would maintain that in the light of the clear findings recorded by the appellate Court, the same need not be disturbed and the appeal filed by the other side Second Appeal No. 22 of 1996 to be dismissed. The learned Counsel in the alternative would submit that the findings recorded by the Court of first instance on the aspect of heirs of illatom son-in-law cannot be sustained since there is no proper prayer and no proper evidence and in the absence of the same, the question of either the concept of illatom son-in-law or claim on the ground of they being the heirs of illatom son-in-law would not arise.
Contentions of Sri C.R. Pratap Reddy, Learned Counsel for the Respondents in Second Appeal No. 456 of 1994 and the Appellants in Second Appeal No. 22 of 1996.
8. The learned Counsel representing the respondents in Second Appeal No. 456 of 1994 and the appellants in Second Appeal No. 22 of 1996 had taken this Court through the findings recorded by the Court of first instance and also by the appellate Court and would maintain that in any view of the matter on the mere denial of the defendants non-suiting the plaintiffs in relation to plaint 'B' schedule property cannot be sustained. The learned Counsel would maintain that all the facts and circumstances may have to be taken into consideration. The learned Counsel also would submit that even if the recitals of Ex.A5 to be taken into consideration along with the other evidence available on record, both the aspects are clearly established that the plaintiffs represent the branch of illatom son-in-law and accordingly the plaintiffs are entitled to the due share. The learned Counsel also would maintain that the Court of first instance basing on the basic and initial stand of the concept of illatom son-in-law arrived at the correct conclusion while making out the shares. However, the learned Counsel would submit that though in the appellate Court, in relation to plaint 'B' schedule property, the findings were reversed on the ground that the said property is of the 2nd defendant, the said findings also cannot be sustained. However, the learned Counsel would submit that not only on the strength of Ex.A5 alone the plaintiffs were successful in getting the relief apart from Ex.A5, the recitals in Ex.A5 also amply support the basic stand taken by the plaintiffs relating to illatom adoption and the evidence is also available on record and hence, it cannot be said that either only on the strength of illatom adoption or on the strength of the concept of illatom son-in-law, the relief had been granted. The Counsel would maintain that on both the grounds, taking into consideration of all the facts and circumstances and the evidence available on record, in substance the concurrent findings had been recorded by both the Courts below and predominantly these are all questions of fact, no substantial questions of law as such is involved in the second appeal filed by the appellants-defendants in Second Appeal No. 456 of 1994. The Counsel, while further carefully articulating his submissions, would maintain that inasmuch as the relief to plaint 'B' schedule property, certain findings had been recorded, which cannot be sustained, the plaintiffs are advised to prefer an independent second appeal - Second Appeal No. 22 of 1996. The Counsel also placed reliance on certain decisions in support of his contentions.
9. Heard the Counsel on record.
10. In the light of the elaborate submissions made by both the Counsel in both the appeals, the following substantial questions of law arise for consideration in these second appeals.
1. Whether the concurrent findings recorded by the Court of first instance and the appellate Court in relation to Ex.A5 are to be confirmed or to be disturbed in the facts and circumstances of the case especially in the light of the stand taken that such a case was neither pleaded nor evidence was let in relation thereto ?
2. Whether the findings recorded relating to the concept of illatom son-in-law to be disturbed by this Court in the facts and circumstances of the case ?
3. Whether negativing the relief to appellants in Second Appeal No. 22 of 1996 - the plaintiffs - in relation to plaint 'B' schedule property can be said to be in accordance with law in the facts and circumstances of the case ?
All other questions, which had been raised and argued in elaboration substantially, would fall within the questions referred to supra.
11. It is stated that these matters were heard by my learned brother Dubagunta Subrahmanyam, J., and the judgment had been reserved on 5-9-2003. This Court on 26-3-2004 made the following order:
In view of the judgment of the learned Single Judge of this Court in Pabbati Sankaraiah v. I.T.O., A-Ward Warangal and Ors. , and also the provisions of Order 41 Rule 30 of C.P.C., judgment though dictated, but not signed or pronounced in Open Court, cannot be signed by any other Judge when the Judge who heard the arguments and dictated the judgment is not available for delivering the judgment.
Appeals, as such, will have to be heard afresh.
Be posted before appropriate Court for hearing.
The learned Judge of this Court in Pabbati Sankaraiah's case AIR 1973 AP 84, held as hereunder:
There is no specific provision in Order 41-A Rule 14 Civil P.C. (Andhra Pradesh) read with Rule 20 as to what is to happen in the case of a judgment which is reversed and which is dictated thereafter by a Judge of the High Court and typed and the Judgedies before he pronounces the judgment in open Court without signing the judgment. Order 20 Rule 2, Civil P.C. does not apply to judgments in writ proceedings. Moreover it cannot be said that Judge who dies is in any sense a predecessor of another Judge of the same High Court within the meaning of Rule 2.
The learned Judge also observed that:
Hence, the question whether any Judge of the High Court can pronounce such a judgment has to be considered on general principles. Since a Judge has a right to change his mind at any time before he actually delivers the judgment, such judgment is of no effect and it is not permissible for another Judge to pronounce it in open Court.
The learned Judge followed the Judgment in Surendra Singh v. State of Uttar Pradesh , and also referred to the decision in Jangam Bhadriah v. Member Board of Revenue (1963) 2 An. WR 243. Thus, these maters are coming up before this Court.
12. The parties hereinafter, for convenience, would be referred to as plaintiffs and defendants as arrayed in O.No. 123 of 1979 on the file of District Munsif, Kamareddy.
13. The plaintiffs filed the suit for partition and separate possession of their l/3rd share in the lands mentioned in plaint 'A' schedule and the house at Kamareddy, mentioned in plaint 'B' schedule. The defendants resisted the suit. The learned District Munsif, after settlement of issues, recorded the evidence of PWs.1 to 8, D.Ws.1 to 5, marked Exs.A1 to A5 and Exs.B1 to B11 and ultimately arrived at the conclusion that the plaintiffs are entitled to a preliminary decree for partition of l/3rd share each to plaintiffs 1 and 2 and l/3rd share to 2nd defendant in the half share of plaint A and B schedule properties and the half share to the 1st defendant. Inasmuch as the plaintiffs filed the suit as indigent persons, certain directions were issued in relation to payment of Court fee. Aggrieved by the same, the defendants carried the matter by way of appeal A.S.No. 30 of 1988 on the file of Additional District Judge, Nizamabad and the learned Judge, after framing the points for determination at Paragraph 3, virtually confirmed all the findings, but negatived the relief to the plaintiffs in relation to plaint 'B' schedule property - house property - and modified the shares in relation to plaint 'A' schedule property and accordingly with the said modifications, virtually confirming all the findings, had disposed of the appeal. Aggrieved by the same, as already referred to supra, the defendants preferred Second Appeal No. 456 of 1994, whereas aggrieved by negativing the relief in relation to plaint 'B' schedule property, the plaintiffs preferred Second Appeal No. 22 of 1996 as already referred to supra.
14. Before taking up further discussion, it would be appropriate to have a look at the respective pleadings of the parties. The plaintiffs pleaded in the plaint as hereunder:
Originally there was a person by name Mallannagari Balram who is the ancestor of the parties and he had a daughter by name Galavva and a son by name Mallannagari Mallareddy, who is the first defendant; that he got married his daughter by name Galavva with one Chitukili Ramaiah belonging to Bhavanipet Village and took him as illatom son-in-law and during the wedlock, the second defendant by name Mallannagari Narsimhareddy was born and that 4 years later the said Galavva died and one or two years later the ancestor Mallannagari Balram got married the plaintiff with his illatom son-in-law and during their wedlock Mallannagari Balamani was born.
Late Balram was owner and possessor of the items shown as items 1 to 12 comprising a total extent of Ac. 14-24 gts and also owner and possessor of house bearing No. 3-2-103 located at Shergalli, Kamareddy. Subsequently, he sold the said house with the consent of all joint family members and he utilized the sale proceeds in constructing a house bearing No. 3-4-42/3 located at Mudamgalli (Harijanwada), Kamareddy in the name of the 2nd defendant. The plaintiffs, late Balram and the defendants herein jointly lived therein by enjoying their respective shares with an understanding as a joint property. Though the suit house is in the name of the second defendant, it is also liable for partition.
Late Balram who had only one son who is the first defendant herein and who had a daughter by name Galavva and as the defendant No. 1 was minor, he kept his daughter Galavva in his house as illatom daughter and Mallannagari Ramreddy alias Chitukili Ramaiah, resident of Bhavanipet, married to his daughter Galavva by giving half share in the properties and kept him as illatom son-in-law. Since then the said Chitukili Ramaiah lived in the house of late Balram with his wife by enjoying half share jointly in the properties mentioned in plaint 'A' and 'B' schedules. Therefore late Balram defendant No. 1 herein Galavva and the illatom son-in-law by name Ramreddy lived amicably as joint family members by enjoying their respective shares and out of their wedlock, second defendant was born. Galavva died in the year 1956. Thereafter late Balram approached the first plaintiff, who is resident of Narsannapalli to perform her marriage with his illatom son-in-law late Ramreddy by giving l/4th share in the properties listed in the schedule; that out of their wedlock, the second plaintiff was born and they lived jointly enjoying their respective shares in the properties mentioned in plaint 'A' and 'B' schedule. At the time of marriage between the plaintiff No. 1 and Ramreddy, the father of the plaintiff Chiguri Pedda Mallaiah, asked late Balram about the security towards the life of his daughter, on which the said Balram executed a deed on 10-2-1957 in the name of the father of the first plaintiff on one rupee stamp paper by allotting half share to his son defendant No. 1 herein and 1/4th share to his grand-son born through Galavva, the second defendant, and the remaining l/4th share to the plaintiff in schedule 'A' and 'B' properties. In the said document late Balram also recited about the illatom of Ramreddy and the share allotted to him at the time of marriage between Ramreddy and Galavva. Though specific share is allotted under the said document to the extent of l/4th to the plaintiff but the plaintiffs are entitled for l/3rd share as per law. Four years prior to the institution of the suit late Balram died and seven years prior thereto illatom son-in-law of late Balram by name Rameddy died; that after the death of Ramreddy and Balram, the plaintiffs and the defendants lived jointly in the house mentioned in schedule 'B' enjoying all the properties mentioned in plaint 'A' schedule till two years prior to the filing of the suit; that after the death of Balram and Ramreddy, the first and second defendants met their hands with each other and conspired together to evict the plaintiffs from the house with a mala fide intention to grab away all the properties mentioned in plaint 'A' and 'B' schedule and in pursuance thereof they colluded together and had driven out the plaintiffs from their house and got mutated in their names and since then the plaintiffs are living at Narsannapalli Village and that the second defendant married the daughter of the first defendant. The plaintiffs demanded 1 /3rd share in the plaint schedule properties on 29-12-1978, but the defendants denied the same. Therefore, cause of action arose in this suit and that the suit is within limitation. Therefore, to decree the suit by partitioning the properties mentioned in plaint 'A' and 'B' schedules by allotting l/3rd share to the plaintiffs.
15. In the written statement filed by the defendants, it was pleaded as hereunder:
It is wrong and incorrect to state that the first plaintiff is the wife of late Ramreddy and the second plaintiff is heir daughter. No marriage took place between them. The said Ramreddy was not taken in illatom adoption and he is not the illatom brother-in-law of the 1st defendant and that there is no conception of illatom brother-in-law in Hindu Law nor it is in practice. The house bearing No. 3-2-103 originally belongs to the father of first defendant and he himself sold it long back; that it is incorrect to state that the house bearing No. 3-4-42/3 was constructed by late Balram with the funds of joint family. On the other hand the suit site was purchased by the second defendant and the suit house was constructed by him exclusively and it is not the joint family property nor the second defendant is a member of joint family; that neither the plaintiff nor the first defendant have any right in the suit house and it is exclusively owned and possessed by second defendant; that the allegation that late Balram kept his daughter as illatom daughter and brought Ramreddy as illatom son-in-law giving half share in the properties is incorrect and that the properties mentioned in plaint A and B schedules belong to late Balram is also incorrect; that the lands covered by Survey Nos. 209/10, 216/4 are held and possessed by the first defendant having inherited the same from ancestors and that the lands covered by Survey No. 235 was sold by Balram and that Survey Nos. 331, 332 and 543 were sold away by the first defendant and that the lands covered by Survey Nos. 540, 45, 190, 204, 205 and 206 are also held and possessed by first defendant exclusively in which the plaintiffs or the deceased Ramreddy has no right or share; that it is also incorrect to state that late Balram, his son defendant No. 1 lived jointly with Galavva and her husband; that Galavva and Ramreddy had no shares in the properties held by late Balram and Mallareddy, as such the allegation of joint living and enjoying their shares alleged in the plaint are fictitious and that it is true that the said Galavva died in the year 1956. It is incorrect that Balram, father of the first defendant, brought the plaintiff and married her to Ramreddy giving l/4th share in the suit properties nor is it true that Ramreddy and plaintiffs lived with Balram enjoying the properties jointly and that late Balram never executed any deed as alleged in the plaint nor made any promise to give 1/4th share in the suit properties. It is also unimaginable that late Balram would make such an agreement to part with his properties specially when his daughter's son defendant No. 2 is already there; that late Balram has no exclusive right or authority to alienate the joint family property; that the deed referred to in the plaint is inadmissible in evidence and that the plaintiff do not get any share on account of such deed nor they become entitled to any share in the suit properties. It is also incorrect that the plaintiffs and defendants lived jointly in the suit house having and enjoying their shares nor is it true that Ramareddy died three years back. This itself shows mala fides of the plaintiffs; that as a matter of fact Ramareddy died long back before the death of Balram in the year 1996; that Balram died on 17-1-1974; that it is also unfound that the plaintiffs and the defendants lived jointly enjoying the suit properties till two years back and that after the death of Ramareddy, the defendant No. 2 was brought up by parents of first defendant. The allegations in Para 8 of the plaint are wrong, ill-founded; that the allegation of coparcenary and driving out the plaintiffs out of the house two years back are wrong and unfounded; that these allegations are carved out by the plaintiffs just to base a claim over the properties; that the house and lands were not mutated two years as alleged in the name of the defendants, on the other hand they are in the names of defendants since long and that the plaintiffs have no share nor they have any right to claim the same. The allegation of claim and denial are created by the plaintiff and that there does not lie any cause of action and the suit is liable to be dismissed in limine.
16. Certain additional pleas were also taken on the ground that the plaintiffs have no locus standi to file the suit at all as they are not the members of the joint family and there is no co-parcenary at all and also further pleaded that since late Balram had not executed the alleged document, the said document is not admissible in evidence for want of registration and stamp duty.
17. The plaintiffs filed I.A. No. 108 of 1987 and as per the Court order the sentence 'Mallannagari Ram Reddy alias Chitukuli Ramaiah died 7 years prior to the death of Balram'' was substituted in place of 'Later on after one year i.e., about 3 years back from today the said Mallannagari Ramreddy alias Chitukuli Ramaiah died' and the plaint was accordingly amended.
18. On the strength of these pleadings before the Court of first instance, the following issues and additional issues had been settled:
1. Whether the plaintiff No. 1 is the wife and plaintiff No. 2 is the daughter of deceased Rama Reddy ?
2. Whether late Ramreddy was the illatom brother-in-law of defendant No. 1 and if so, is it valid and has any effect ?
3. Whether the defendant No. 2 is the member of joint family with Mallannagari Balram and the house bearing G.P.No. 3-4-42/3 is the property of such joint family ?
4. Whether Ramreddy died three years back as alleged in the plaint ?
5. Whether the plaintiffs are the joint family members of defendant No. 1 and are entitled to any share, if so to what extent ?
6. Whether Mallannagari Balram executed any document in favour of Mallaiah, if so, what is its effect on the parties ?
7. Whether the document is inadmissible for want of stamp duty and registration ?
8. Whether the suit properties belong to late Balram ?
9. Whether the plaintiffs are entitled to 3rd share in the suit properties mentioned in the schedule A and B and whether the above properties are liable for partition and for separate possession ?
10. To what relief ?
Additional Issues
1. Whether late Mallannagari Ramreddy alias Chitukula Ramaiah is the illatom son-in-law of late Mallannagari Balram ?
2. Whether later Mallannagari Balram agreed to give half share in the suit property by virtue of said illatom ?
As already referred to supra, the evidence of PWs.1 to 8 and DWs.1 to 5 had been recorded and Exs.Al to A5 and Exs.Bl to B11were marked. The oral and documentary evidence available on record are as hereunder:
Witnesses examined PW.1 Mallannagari Susheela DW.1. M. Mallareddy PW.2 Chidru Narayana DW.2. M. Madusudhan Rao PW.3 Chidru Venkaiah DW.3. Chitlculi Narsimha Reddy PW.4 Jailla Balraju DW.4. Mangali Dattaiah PW.5 Ramreddypet Siddaiah DW.5. Korandula Yellareddy PW.6 Chitukuli Cangaiah PW.7 Domakonda Kothula Narsawa PW.8 Chitukuli Narsawa Exhibits marked for plaintiffs Ex.A1. Certified copy of pahani for the year 1970-71.
Ex.A2. Certified copy of pahani for the year 1977-78.
Ex.A3. Copy of Chowfasla for the year 1972-73.
Ex.A4. Voters List 1970.
Ex.A4(a). Portion in Ex.A4.
Ex.A5. Document (Will Deed) dated 10-2-1957.
Ex.A5(a) Signature of PW.3 in Ex.A5.
Ex.A5(b) Signature of M. Balram.
Exhibits marked for defendants Ex.B1 Certified copy of Mutation Register issued by M.R.O. Kamareddy.
Ex.B2. Copy of Faisal Patti.
Ex.B3. Certified copy of Kami Izafa.
Ex.B4. Lagna Patrika of Galawa.
Ex.B4(a). Signature of late Balram.
Ex.B5. Lagna Patrika of defendant No. 1.
Ex.B5(a). Signature of late Balram.
Ex.B6. Certified copy of sale deed.
Ex.B7. Permission for construction.
Ex.B7(a) Approved map.
Ex.B8. Receipt for betterment charges.
Ex.B9. Tax Payment Receipt dated 16-9-1987.
Ex.B10. Certificate issued by Gram Panchayat, Kamareddy, dated 15-1-1979.
Ex.B11. Certified copy of Pahani for the year 1978-79.
The oral and documentary evidence available on record had been discussed at length both by the Court of first instance and also by the appellate Court and findings had been recorded in detail.
19. It is not in controversy between the parties that the document Ex.A5 was held to be a Will by both the Courts below and both on the strength of Ex.A5 and also the other fact relating to illatom adoption, both the Courts granted the reliefs. No doubt the Court of first instance granted larger relief, whereas the appellate Court had reversed it in relation to plaint B schedule, but granted modified relief in relation to plaint A schedule.
20. The first plaintiff examined herself as PW.1 and apart from this evidence, there is other ample evidence also in support of the version of PW.1. It is true that the burden lies on the plaintiffs to positively prove that the first plaintiff is the legally wedded wife of Ramareddy and the second plaintiff was born through him to her. Defendant No. 1 examined himself as DW.1 and 2nd defendant as DW.3, the Patwari was examined as DW.2, one Purohit was examined as DW.4 and a close relative of defendant No. 1 was examined as DW.5. The admission made by DW.5 in relation to the marriage had been taken into consideration. Ex.A4 is the copy of the voters list and the relevant portion was marked as Ex.A4(a), which shows that Mallannagari Balram, the ancestor of defendant, was residing at House No. 3-2-103 at the time of enumeration. The evidence of PW1 in fact had been carefully scrutinized and findings in detail had been recorded. On the aspect of Ex.A5, elaborate submissions were advanced by both the Counsel relating to the nature of this document and the right of the plaintiffs to claim partition on the strength of such document.
21. Strong reliance was placed on the decision reported in Namburi Basava Subhramanyam v. Alapati Hymavathi and Ors. , wherein the Apex Court while dealing with construing of a deed, whether a settlement deed or Will, held that deed creating right and interest 'in presenti' in favour of settlee regarding properties mentioned therein with life estate for her enjoyment during her lifetime, settlee was to acquire absolute right to enjoyment, alienation etc., on settlor's demise, Deed is settlement deed and not Will and the settlor cannot subsequently bequeath same property in favour of other. Strong reliance was also placed on the decision in Kalyan Singh v. Chhoti , wherein it was held that failure of plaintiff to remove suspicious circumstances by placing satisfactory material on record, Will cannot be held to be genuine. Strong reliance was placed on the judgment in Vinod Kumar v. Surjit Kuar , wherein it was held that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. Reliance also was placed on the judgment in Dr. Mandakini Naik v. G.K. Naik and Ors. , wherein it was held by the learned Judge of this Court that the contents of this document also do not indicate that it has come into operation after the death of the executant and that he has reserved the right to invoke the document during his lifetime, and a plain reading of the contents of the above documents do not indicate that they shall come into force after the death of the executant or that he reversed the right to revoke the 'Wills' at any time prior to his death. The lower Court therefore, rightly observed that they cannot be accepted as "Wills" and rejected to receive those documents in evidence.
22. It is no doubt true that though a specific plea that Ex.A5 is a Will had not been pleaded, the same was styled as a Deed, both the Courts while appreciating the contents of Ex.A5 came to the conclusion that the same is a Will. The recitals made in the said document had been taken into consideration. On a careful analysis of all the recitals, it cannot be said that the rights had been conferred in presenti in toto under the said document. The Court of first instance and also the appellate Court came to the conclusion that the said document to be held as a Will and hence arrived at the said conclusion. This Court also had given its anxious consideration to the recitals in Ex.A5 though the language is not happily worded and the recitals appear to be in rural style, this Court is of the considered opinion that the concurrent findings recorded by both the Court of first instance and the appellate Court in relation to the nature of the document Ex.A5 cannot be found fault with and accordingly the said findings are hereby confirmed.
23. In the alternative, certain submissions were made by the Counsel representing the defendants that if Ex.A5 if to be construed to be a Will, then the necessary evidence in relation to the proof of the Will being absent, the plaintiffs are to be non-suited. The learned Counsel placed strong reliance on the decision of the Apex Court in Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors. , and would maintain that inasmuch as the execution of the Will was not proved in accordance with Section 63 of the Indian Succession Act, 1925 read along with Section 68 of the Indian Evidence Act, 1872, it is contended that the plaintiffs are bound to fail. There cannot be any dispute or quarrel with the proposition laid down by the Apex Court referred to supra. While granting or negativing the relief in a suit of this nature, a suit for partition, all the facts and circumstances, the relationship between the parties and the whole evidence available on record may have to be taken into consideration. It is not as though the whole case of the plaintiffs is based on Ex.A5 and Ex.A5 alone. All other factual aspects as reflected from both oral and documentary evidence and also as well reflected from the concurrent findings recorded by both the Courts may have to be taken into consideration. It is needles to say that these aspects may have to be appreciated inasmuch as this Court is dealing with the second appeals preferred by both the parties and also keeping in view the limitations imposed on this Court in relation to the re-appreciation of the evidence under Section 100 of the Code.
24. Strong reliance was placed on the judgment in Malkani v. Jamadar , wherein the Apex Court while considering the validity of the Will observed at Paras 1 and 3 as hereunder:
This appeal by special leave is directed against the judgment and decree of the Punjab and Haryana High Court dated April 30, 1979 arising out of a suit brought by the appellant, as plaintiff, for declaration of her one-sixth share in the suit lands and for joint possession against the respondents who are her paternal cousins, on the allegation that they had abducted her mother Mst. Part and that the alleged Will dated August 24, 1979, Exh.Dl, purported to have been executed by her mother in their favour was not genuine but had been procured by fraud. Her case was that her mother Mst. Pari had been abducted by the respondents and they got the Will executed, and that case has not been substantiated. Both the learned Additional District Judge as well as the learned Subordinate Judge have on a consideration of the evidence held that due execution of the Will, Exh.D1, as well as its attestation were proved, and also that there were no suspicious circumstances surrounding its execution which create doubt as to the testamentary capacity of the testatrix or tend to show that she did not make the disposition of her own free will. The High Court dismissed the second appeal in limine inasmuch as there was no question of law much less a substantial question of law to attract Section 100 of Civil Procedure Code 1908.
After hearing the learned Counsel at considerable length, we find it difficult to interfere with the findings of fact reached. There is no dispute with the proposition laid down in the cases relied upon, but the difficulty is about its application to the facts and circumstances of the present case. The learned Additional District Judge had taken the care of observing that the only circumstance brought out was that the defendants who were the beneficiaries under the Will, Exh.D1, had taken an active part in its execution. But he rightly observed that, that by itself was not sufficient to create any doubt either about the testamentary capacity of Mst. Pari or the genuineness of the Will. It is quite evident that the testatrix was determined in bequeathing the property to her husband's brother's sons to the exclusion of the plaintiff. It is brought out in evidence that the plaintiff had on July 25, 1972 made a report to the Tahsildar alleging that her mother Mst. Pari had been abducted by the defendants and that they were about to get a conveyance executed by her in their favour. Thereafter on August 23, 1972 i.e., just a day before the execution of the Will, she instituted a suit being Civil Suit No. 491/72 claiming a declaration of her title as against her mother Mst. Pari. These circumstances taken together clearly give rise to an inference that the plaintiff knew that her mother was about to execute a Will and she tried to prevent her from doing so. But this did not prevent Mst. Pari from executing the Will on the next day. After the execution of the Will, Mst. Pari admittedly came and lived with the plaintiff till her death on January 1, 1973. If the allegation that the defendants had procured the Will by fraud were to be believed, it was but expected, according to the ordinary course of human conduct, that Mst. Pari would have made a report to the authorities against the defendants or revoked the Will. The fact remains that she did not execute another Will during her lifetime. This evidently shows that the Will, Exh.Dl, was a genuine Will and was intended to be acted upon.
25. Strong reliance was also placed on the judgment in Kasturi v. Ponnammal , wherein placing reliance on the judgment in Gnanambal Ammal v. T. Raju Ayyar , the apex Court observed as hereunder:
The rule of construction of Wills that so far as is reasonably possible Courts should adopt that construction of the Will which would avoid intestacy cannot be treated as an absolute rule which should have overriding importance in construing a Will. If two constructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the Court would certainly be justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used as ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy.
26. Apart from the evidence of PW l, who no doubt deposed in detail the averments as reflected in the plaint, PW2, a resident of Narsannapally also deposed in detail in relation to Ex.A5. PW3 also supported the version of PW2. This evidence had been discussed in detail and findings had been recorded further marking Exs.A5(a) and A5(b), the signature of PW3 in Ex.A5 and the signature of M. Balram. Apart from this aspect of the matter, findings had been recorded in relation to Exs.B4(a) and B5(a) said to be the genuine signatures of Mallannagari Balram. It is needless to say that these findings are all findings in relation to the facts.
27. The question whether late Ramareddy was taken in illatom adoption by late Balram while giving his daughter in marriage to Ramareddy is yet another question argued in elaboration. Strong reliance was placed on the judgment in Neelam Bhadramma v. Marri Lakshmamma , wherein it was held by this Court that as far as the concept of illatom adoption, it is a customary mode of adoption recognised only in certain castes and such adoption has to be clearly established by pleadings and evidence.
28. Reliance also was placed on the judgments in Basi Reddy v. State of A.P., 1978 (2) An.WR 46 and Nyalati Lalithamma v. Nyalati Rathanamma, 1986 (1) ALT 214. Further strong reliance was placed on the judgments in Laxmamma v. Venkatayya AIR 1943 Mad. 731; Nalluri Krishnamma v. Kamepalli Venkota Subbayya ILR 42 Mad. 805 Chenchamma v. Subbayya ILR 9 Mad. 114; Hanumantamma v. Rami Reddi ILR 4 Mad. 222; Muthala Reddiar v. Shankarappa Reddiar AIR 1935 Mad. 32 and Ravimder Reddy v. Ayyappa .
29. The plaintiffs pleaded in the plaint originally, that the 1st defendant is the illatom brother-in-law of late Ramireddy, the husband of the 1st plaintiff, and on the strength of it, certain submissions were made that the concept of illatom brother-in-law is unknown to Hindu Law. But, by an order made in IA No. 44 of 1987 in OS No. 123 of 1979, the following additional issues were framed:
1. Whether late Mallannagari Ramireddy alias Chitkula Ramaiah is the illatom son-in-law of late Mallannagari Balram ?
2. Whether late Mallannagari Balram agreed to give half share in the suit property by virtue of said illatom?
30. There cannot be any serious controversy that the concept of illatom son-in-law alone is known to Hindu Law, but, in the light of the additional issues settled by the Court of first instance and the findings recorded in detail, which had been confirmed by the appellate Court, it cannot be said that there is any serious prejudice caused to the other side since both the parties were conscious of their respective contentions and had gone on trial on the specific issues relating to the illatom adoption and hence, in the light of the detailed findings recorded by both the Courts, this Court is of the opinion that the plea raised in such a fashion cannot be said to have substantially caused prejudice to the opposite parties, especially in the light of the concurrent findings recorded, such a contention cannot be permitted to be raised at the stage of second appeal.
31. There is also no serious controversy that the parties to the litigation belong to Reddy community of Telangana area.
32. The pre-requisites relating to illatom adoption between the adoptor and adoptee is that the adoptor to give some share to the adoptee and the adoptee to marry the daughter of adoptor. These aspects had been taken into consideration and the evidence of PWs.4 to 7 had been dealt with at length and factual findings in detail had been recorded. On a careful analysis of the findings and inasmuch as the whole oral and documentary evidence of PWs.1 to 8 and DWs.1 to 5 and also Exs.A1 to A5(b) and Exs.B1 to B11 had been taken into consideration by both the Courts and findings had been recorded, this Court is of the considered opinion that unless any perverse findings or findings basing on no evidence had been pointed out, this Court to be slow in disturbing such concurrent findings. If the stand taken by the defendants that no rights would flow out of Ex.A5 to be taken into consideration and if the parties fall back upon the illatom adoption, in fact the defendants may be entitled to lesser share. This Court is not inclined to express any further opinion relating to this aspect.
33. Be that as it may, it is pertinent to point out that the unsuccessful plaintiffs in relation to the negativing the relief to the plaint B schedule property, thought it fit to question only that portion and hence, this Court is not inclined to disturb the other findings recorded by the appellate Court in this regard. Hence, the appellate Court, having taken into consideration both the concept of illatom adoption and Ex.A5 and after recording findings, had modified the relief in relation to the plaint A schedule and negatived the relief in relation to plaint B schedule. It is needless to say that as far as the findings recorded by the appellate Court in relation to B schedule predominantly being a question of fact, the lower appellate Court being the final Court regarding re-appreciation of the evidence, this Court is not inclined to disturb the said finding of fact recorded by the appellate Court in relation to plaint B schedule property also. Hence, in view of the facts and circumstances, this Court is of the considered opinion that the appellate Court had arrived at the just and proper conclusion in granting the modified decree and therefore, the findings recorded by the appellate Court are hereby confirmed. It is needless to say that the appeals, the appeal filed by the plaintiffs as well as the appeal filed by the defendants are bound to fail.
34. In the result, both the second appeals shall stand dismissed. In view of the close relationship between the parties, the parties to bear their own costs.