Andhra HC (Pre-Telangana)
Diyyala Gopala Krishna Murty vs Pullagura Dhanalakshmamma And Ors. on 11 October, 2002
Equivalent citations: 2003(1)ALD279, 2003(1)ALT9, AIR 2003 ANDHRA PRADESH 151, (2005) 1 MARRILJ 136 (2003) 1 ANDHLD 279, (2003) 1 ANDHLD 279
JUDGMENT G. Yethirajulu, J.
1. This is an appeal preferred by the adopted son of the plaintiff in O.S. No.624 of 1979 on the file of the I Additional District Munsif, Madanapalli, being aggrieved by the judgment of the Additional District Judge, Madanapalle allowing the appeal preferred by the defendant and setting aside the judgment and decree of the trial Court granted in favour of the plaintiff.
2. The appellant is the 5th respondent in AS.No.57 of 1990 and the respondents herein are the appellant and respondents 1 to 4 in the said appeal.
3. The plaintiff by name Diyyala Savitramma filed the suit for a declaration that she is the hereditary trustee of the deity Sri Kanyaka Parameswari situated in the suit property and to direct the defendant Pullagura Dhanalakshmamma to deliver possession of the plaint schedule property.
4. According to the plaintiff the deity Sri Kanyaka Parameswari is the family deity of one Gandikota Raghavaiah. He died in the year 1940. He had two wives viz., Savitramma and Venkatamma. He had a daughter by name Savitramma (plaintiff in the suit) wife of Venkata Subbaiah, through his second wife Venkatamma. The present appellant is the adopted son of Savitramma, Raghavaiah had another daughter by name Ademma through his first wife Savitramma. Ademma had two sons viz., Lingaiah and Mallikarjuna, The defendant is the wife of Lingaiah. Lingaiah and the defendant have a daughter by name Girijamma and a son by name Mallikarjuna Babu. During his life time Gandikota Raghavaiah executed Ex.A.l-registered Will on 19-8-1929 mentioning that his second wife Venkatamma should manage the suit properties and after her death the plaintiff Savitramma to manage the properties. The defendants are the agnates of Raghavaiah through his first wife. The 1st defendant's husband Lingaiah executed Ex.A.5- Kharar agreement dated 16-5-1962 in favour of the plaintiff s husband Venkata Subbaiah and entered into the suit property. After the death of her husband, the 1st defendant continued to be in possession of the property and is performing pooja to the deity. One Mallikarjuna, the brother of the 1st defendant's husband filed O.S.No.890 of 1974 on the file of the Principal District Munsif, Madanapalle alleging that the defendant is not allowing him to enter into the suit premises. In the said suit, the District Munsif granted a decree in favour of the plaintiff to evict the defendant. The defendant is not performing any pooja to the deity. On 6-12-1978 a lawyer notice was issued to the defendant and she gave a reply asserting that she is entitled to continue in possession. Hence the suit for the reliefs mentioned above.
5. According to the defendant the family is in possession of the suit premises since 15 years prior to the suit and are performing the pooja to the deity. After the death of her husband, the defendant and her children are regularly offering worship to the deity. Late Gandikota Raghavaiah through Ex.Al-Will desired that the suit properly shall be managed by his second wife during her life time and after her demise the property to devolve upon the defendant's husband and his brother. Thus, the defendants' family is entitled to be in possession of the suit property as successors-in-interest and as they are fulfilling the desire of late Raghavaiah there is no necessity for the defendant to vacate the suit premises. The suit is therefore liable to be dismissed with costs.
6. Gandikota Raghavaiah executed Ex.Al-Will. As per the terms of the said Will his second wife Venkatamma was to manage the suit property during her life time. After Venkatamma her daughter Savitramma to manage the property. In the event of the plaintiff and her husband Venkata Subbaiah do not beget children and if they die issueless the defendant's husband and his brother Mallikarjuna to take possession of the suit property, perform pooja to the deity and manage the properties forever. As per the terms of Ex.A.l-Will, the plaintiff is entitled for possession of the suit property for the purpose of management. Therefore, she filed the suit to declare that she is the hereditary trustee of the temple and she is entitled for recovery of possession of the suit property from the defendant
7. The trial Court after considering the evidence placed by both parties held that since the plaintiff was given only the right to manage the property and if she begets children, they will continue to manage the same, but since the plaintiff did not beget children the trial Court held that the plaintiff is not entitled to be declared as a hereditary trustee, but she is entitled to recover possession of the same for the purpose of management during her life-time and that the defendant is liable to deliver the suit property for the said purpose. Accordingly the suit was decreed by the trial Court in favour of the plaintiff through its judgment dated 8-11 -1982.
8. The defendant being aggrieved by the judgment and decree of the trial Court preferred A.S.No.57 of 1990 on the file of the Additional District Judge, Madanapalle. During the pendency of the said appeal, the plaintiff died and her adopted son was brought on record as 5th respondent.
9. The 1st appellate Court after considering the evidence on record and in consequence of the death of the plaintiff during the pendency of the appeal held that since the plaintiff is no more, the adopted son is not entitled to recover possession of the property. The 1st appellate Court further held that the appellant therein and the respondents 2 to 4 are entitled to take possession of the suit property and to perform pooja to the deity in terms of Ex.A.l-Will. Accordingly the appeal was allowed by setting aside the judgment of the trial Court through its judgment dated 11-10-1990.
10. The adopted son who was the 5th respondent in the 1st appeal, being aggrieved by the judgment and decree of the 1st appellate Court, preferred this appeal challenging its validity and legality.
11. At the time of admission of this appeal, the grounds of appeal were taken as the substantial questions of law to be considered by this Court. But, on seeing those grounds it is noticed that there is a substantial question of law only in the following grounds of appeal:
(1) Whether the 1st appellate Court is right in holding that an adopted son does not come within the definition of 'santhanam' in Ex.A.l?
(2) Whether the appellate Court is right in not following the decisions cited by the learned Counsel for the appellant and interpreting Ex. A.I-Will through the established canons of interpretation of documents?
Point No.l
12. There is no dispute regarding Ex.A.l-registered Will. As per the terms of the said Will, the plaintiff is entitled to manage the suit properties during her life time and as she did not beget children, the property to devolve on defendant's husband and his brother for the purpose of management. The adopted son who is the appellant herein contends that he was adopted by the defendant during the lifetime of her husband in the year 1948. He therefore claims that the adopted son also comes within the definition of 'santhanam', He therefore requests that the appeal may be allowed by setting the judgment and decree of the 1st appellate Court.
13. The plaintiffs suit was decreed by the trial Court declaring her as trustee for her life-time and for recovery of possession of the suit property. The appeal preferred by the defendant was allowed by the 1st appellate Court on account of the death of the plaintiff and by holding that as per the terms of Ex.A.I-Will the defendant's husband and his brother are entitled for the same.
14. The learned Counsel for the respondents submitted that since the plaintiff died during the pendency of the appeal the cause of action does not survive. Hence the appeal cannot be maintained.
15. The learned Counsel for the appellant laid stress on the word 'santhanam' and tried to convince this Court that the word 'santhanam' includes the adopted son. The learned Counsel cited the following judgments in support of his contention, (See , , ) but on verification of those judgments, it is noticed that the point that was involved in those judgments was about the interpretation of the word 'santhath? and the definition of 'son'. In those judgments it was held that 'santhath' is a broader word and whereas the definition of 'son' includes the 'adopted son'. But, in the case on hand, the specific word that was used in Ex-A-1 is 'santhanam'. There is no ambiguity in the wording used by the Testator in Ex. A.I-Will and on its plain reading it is clearly indicating that his intention in referring the word 'santhanam' is only with reference to issues born to the defendant and her husband and there is no scope to say that others also can be included in the word 'santhanam'. Except the natural children, there is no scope to include either adopted children or foster children in the definition of 'santhanam'. Had the Testator intended that the plaintiff's family should continue to be in management of the suit property he would have clearly expressed in Ex.A.I. At the time of execution of the Will he might be having more affection towards his second wife. Therefore, he entrusted the property for the management of the second wife and her daughter and desired that their family should continue to manage the property, unless they are issueless. The Testator wisely mentioned in Ex.A. I that in the event of his daughter Savitramma not begetting children, the property shall be taken possession and managed by the prodigee of the 1st wife. In the light of the above circumstances, though Mr.Bhatt, the learned Counsel for the appellant, vehemently argued the matter, I am not inclined to accept his argument that the adopted son should also be included in the word 'santhanam'. I therefore hold that the appellant is not entitled to take possession of the suit property from the defendant's children.
Point No. 2:
16. I have already mentioned under point No.l that the decisions cited (supra) by the learned Counsel for the appellant relate for the interpretation of the word 'santhathi' and 'son' etc. Therefore, those decisions are not applicable to the facts of the case. Accordingly this point is held against the appellant
17. In the result, the appeal is dismissed by confirming the judgment and decree of the 1st appellate Court, but under the circumstances without costs.