Andhra HC (Pre-Telangana)
Nunna Rama Krishna Nageswara Rao And ... vs Bolisetty Lakshmi Venkata Naga ... on 19 October, 2001
Equivalent citations: 2002(1)ALD632
ORDER
1. Wife of first petitioner and mother of petitioners 2 to 10 by name Kanaka Durga Lalitha Kumari (hereinafter called the plaintiff) filed OS No. 192 of 1991 on the file of the Court of II Additional Senior Civil Judge, Vijayawada, inter alia for partition of the property specified in the schedule appended to the plaint in two equal shares, which is an upstairs building in Ward No. 11 of Vijayawada Municipality, Revenue Ward No. 6, with Assessment No. 8071, Block-II, I Town, Vijayawada) within the boundaries specified in the schedule appended to the plaint, which hereinafter would be called as the 'suit property', and for allotment of one such share to her with profits, past and future: on the ground that Lakshmi Venkata Narasimha Rao, her father, and adopted the first respondent, gifted half share in the suit property towards 'Pasupa Kunkuma' to her at the time of her marriage. First respondent contested the suit denying the gift in favour of the plaintiff, and contending that the suit property was gifted to him by his adoptive father Lakshmi Venkata Narasimha Rao [herein after called 'Narasimha Rao'] under a registered settlement deed dated 22-4-1981 (Ex..X.1); and had also executed a will dated 4-7-1975 bequeathing the suit property to him. During the pendency of the suit before the trial Court plaintiff died. Petitioners came on record as her legal representatives and adduced evidence. The trial Court dismissed the suit Therefore petitioner preferred the appeal.
2. Petitioners filed this petition in the appeal seeking leave to amend the plaint by deleting lines 14 and 15 at page-2 reading, "Subsequently Lakshmi Venkata Narasimha Rao adopted the defendant herein on 21-5-1977" by substituting the sentence reading "Bolisetty Lakshmi Venkata Narasimha Rao has fostered the defendant who is the son of Smt. Satyavathi and Kanagarla Rama Chandra Murthy". The petition is opposed by the respondent on the ground that it not only changes the nature of the suit, but also has the effect of taking away the admission made by the plaintiff, and hence causes great hardship and prejudice to him.
3. The point for consideration is whether the amendment sought by the petitioners can be allowed.
4. The contention of the learned Counsel for the petitioners is that Narasimha Rao and his wife Krishnavenamma did not beget any sons but only had one daughter, the plaintiff, and so Narasimha Rao at the time of her [plaintiffs] marriage with the first petitioner on 15-11-1953 announced and gifted half portion of the suit property to the plaintiff towards "Pasupa Kunkuma" and after the death of his wife Krishna Venamma, Satyavati, the mother of the respondent, was staying with Narasimha Rao who only fostered but did not adopt the respondent and in any event the ceremony of giving away and taking in of the respondent, in adoption by Narasimha Rao and his wife Satyavathi did not, and could not have, taken place, because Satyavathi, the mother of the respondent who allegedly became the wife of Narasimha Rao on 8-8-1973, could not have given away and taken in the respondent adoption at the same time, and since the ceremony of giving away and taking in of the adoptee is a most essential ceremony in an adoption, and absence of such ceremony invalidates the adoption, respondent cannot be the adopted son of Narasimha Rao. He contended that petitioners, especially 1st petitioner, could not be and was not aware of the said fact, and the factum of respondent being the son of Satyavathi, and Satyavathi's marriage with Narasimha Rao came to the notice of the 1st petitioner only form the recitals in the Will said to have been executed by Narasimha Rao, which was brought on record in the trial Court during the fag end of the trial, and contended that since the proposed amendment does not change the nature of the suit, or alter the cause of action, petitioners may be granted leave to amend the plaint as proposed. It is his contention that question of admission or withdrawal of an alleged admission, does not arise in this case because "fostering" and 'adoption' are treated almost the same, or synonymous and so plaintiff loosely used word 'adopted' in the plaint in place of 'fostered'. The contention of the learned Counsel for the respondent is that since the proposed amendment not only takes away the earlier admission, but also introduces a new and fresh case resulting the necessity of parties adducing fresh evidence, the same cannot be allowed at the stage of appeal. He contended that petitioners who came on record, as legal representatives of the plaintiff cannot take any fresh pleas, or a plea in consistent with the plea taken by the plaintiff. He also contended that 1st petitioner, who, as PW1., admitted the adoption of respondent by Narasimha Rao, cannot now be permitted to take an opposite stand in the appeal. He relied on Rachhya Singh v. RRBP Singh, , Seshamma v. Seshadri, AIR 1948 Mad 179, Bala Sundara v. Muthuvenkatachala, , G. Tirupathaiah v. K. Ramasubbaiah, , Jayanth Mohan v. Jagat Mohan, , BKN Pillai v. P. Pillai, , Kamala Bala Biswas v. Kalachand Sarkar, , Mohd Jaffer Ali v. S.R. Rao, , Ganeshi Rai v. I Additional District Judge, Ghaziapur, , Vedachala Chettiar v. Ameena Bi, AIR 1944 Mad. 121, Mohan Singh v. Pashupathi Nath, AIR 1970 SC 42, Elaya Pillai v. Ramasami Jadaya Goundan, AIR 1947 Mad. 165 and Heeralal v. Kalyan Mal, , in support of his said contentions.
5. The allegation in the plaint, filed by the plaintiff, is "Lakshmi Venkata Narasimha Rao, adopted the defendant herein on 21-5-1997". Which is a clear admission on the part of the plaintiff that respondent is the adopted son of Narasimha Rao, her father, and father-in-law of the first petitioner and grand-father of petitioners 2 to 10. Plaintiff never sought to retract the said admission during her lifetime. Though the amendment sought is seemingly innocuous, if permitted it definitely takes away the admission made by the plaintiff. Petitioners who came on record as the legal representatives of the plaintiff, cannot be granted leave to withdraw an admission made by the plaintiff, and take a diametrically opposite stand, because it is well known that a legal representative of a deceased party cannot take a plea which is inconsistent with the plea taken by the deceased party, whose estate he is representing in the suit, and cannot also take a fresh plea or defence. In Guli v. Sawan and Ors., AIR 1924 Lahore 45, it is held that on the death of a party to the suit, his legal representative would be brought on record with a view that the suit can be proceeded with only, and in such cases the rights of original parties, and not of their legal representatives, would be considered. The said decision was followed in Durga Das v. Ram Rekha Mal, AIR 1951 Pun. 389. In Surendra Narain v. Bholanath Roy, AIR 1943 Cal. 613, a Division Bench of the Calcutta High Court held that a legal representative is bound to adopt the written statement of the deceased defendant, and cannot, at the appellate stage, raise a new case, or a case inconsistent with the case of the deceased defendant as made in his written statement. The Supreme Court in B.K.N. Pillai v. B. Pillai (supra) clearly held that principles applicable to amendment to plaint and written statement are one and the same. Therefore ratio in Surendra Narain (supra) applies on all fours to the facts of this case.
6. The contention of the petitioners that respondent being the son of Satyavathi, and Satyavathi marrying Narasimha Rao, and later giving the plaintiff in adoption to Narasimha Rao, came to light only after Ex.X1 was brought on record, to too bitter a pill to be swallowed. The marriage between the first petitioner and plaintiff took place on 15-11-1953, as seen from the deposition of the first petitioner as PW1. The adoption of the respondent, as per the averments in the plaint, took place on 21-5-1977 i.e., about 24 years after the marriage between plaintiff and 1st petitioner. Plaintiff along with her husband i.e., 1st petitioner, admittedly was staying in the suit property till the tenant of the house, which was gifted to the plaintiff by Narasimha Rao, vacated it. When plaintiff and 1st respondent were living in the same house in which Narasimha Rao was staying, it is unbelievable that they were not aware of the happenings in the house of Narasimha Rao. So it can be presumed that plaintiff did attend the ceremony of adoption of respondent by Narasimha Rao. It is not the evidence of the first petitioner, as PW1 that he did not attend the ceremony of adoption of respondent, or that no ceremony of adoption ever took place. If giving away and taking in of respondent in adoption had not taken place, nothing prevented the first petitioner, who gave evidence as PW1, stating so in his evidence. If plaintiff knew that giving away and taking in respondent in adoption had not taken place, she would not have failed to mention the same in the plaint and made it an issue. It is not as though there is a change in the position of law relating to adoption subsequent to be filing of the suit. The plaintiff not raising a plea of invalidity of adoption in the plaint, and admitting adoption of respondent by Narasimha Rao, establishes that she was aware that there was a valid adoption 1st petitioner should be imputed with such knowledge because he, as PW1, admitted in his evidence that respondent is the adopted son of Narasimha Rao. In his chief-examination, 1st petitioner, as PW1, stated "My father-in-law adopted the defendant in 1977". As per Section 58 of Evidence Act admitted facts need not be proved. Therefore, validity of adoption of the respondent by Narasimha Rao is not a fact in issue in the case till now. If amendment proposed is allowed, it tantamounts to permitting withdrawal of the earlier admission, and therefore, the validity of adoption of the respondent would also become a fact in issue, and results in a fresh trial on that issue.
7. In Heeralal case (supra) Supreme Court held that amendment withdrawing an admission is not permissible. That decision was followed by this Court in G. Turupathaiah case (supra). In Ganeshi Rai's case (supra) it is held that new case, based on facts available at the time of plaint, cannot be allowed at appellate stage. In Kamala Bala Biswas case (supra) an amendment of plaint introducing a new case, counter to the earlier claim in the trial Court was rejected. In Balasundara case (supra) it was held that a new case having the effect of taking fresh evidence cannot be permitted. In Seshamma case (supra) a third ground was not allowed to be introduced by the plaintiff who filed the suit on two alternative pleas. In Rachhya Singh v. RRBP Singh (supra) it is held that amendment which changes the nature of the case and ousts the trial Court's jurisdiction cannot be permitted. In Mohd. Jaffer Ali v. S.R. Rao (supra) an amendment to get over a judgment was not permitted. Vedachala Chettiar case (supra) amendment sought by defendant introducing a new plea in the written statement was not permitted after the plaintiff closed his evidence, In Elaya Pillai case (supra) an amendment introducing a completely new element unconnected with, and in essence inconsistent with the ground originally alleged, was not permitted. In Mohan Singh (supra) an amendment sought in the Supreme Court after 22 years after the institution of the suit with a new contention was not allowed. In Jayanta Mohan (supra) prayer for amendment of plaint, changing the nature of the suit, raising fresh issue triable on evidence, was rejected at appellate stage. In view of the above case law also petitioners cannot be granted leave to amend the plaint as sought.
8. If respondent is not the adopted, but was only fostered by Narasimha Rao, question of his inheriting half portion in the building belonging to Narasimha Rao, after his death, does not arise. Therefore if adoption of respondent by Narasimha Rao is not true, as is now sought to be contended, plaintiff, as daughter of Narasimha Rao, would have inherited the remaining half portion of the suit property also. So plaintiff would and ought to have claimed the entire property, i.e., half portion basing on the oral gift, and the remaining half by virtue of inheritance on the death of Narasimha Rao. The fact that plaintiff filed the suit for partition of half share in the suit property, basing on oral gift in her favour, and did not make a claim in respect of the remaining half share of her father, tantamounts to an admission that respondent is entitled to the remaining half share. The fact that petitioners by this amendment petition also are not making a claim to the remaining half portion of the building clearly establishes that petitioners in fact impliedly admit the adoption of the respondent by Narasimha Rao.
9. Since the amendment proposed, if allowed, would have the effect of taking away the admission made by the plaintiff, which she never intended, or sought to withdraw during her life time, and since petitioners, as legal representatives of the plaintiff can only continue the proceedings, arid cannot take an inconsistent or a different plea than the one taken by the plaintiff, nor can they seek to withdrawn an admission made by her, petitioners cannot be granted leave to amend the plaint as sought point is answered accordingly and hence the petition is dismissed. No costs.