Andhra HC (Pre-Telangana)
Kandadai Tirumal Acharya And Ors. vs Kandadai Venkatachari And Ors. on 10 April, 2008
Equivalent citations: AIR 2008 (NOC) 2896 (A.P.), 009 (1) AJHAR (NOC) 47 (A. P.)
JUDGMENT V.V.S. Rao, J.
1. This is a regular first appeal by first defendant in O.S. No. 57 of 1975 on the file of the Court of the Subordinate Judge, Warangal. The suit for partition was initially filed informa pauperis, by Kandadai Perundevamma against four defendants, including her two sons, namely, Tirumalacharyulu1 and Venkatachari, defendant Nos. 1 and 4. Defendant Nos. 2 and 3, namely Kunduri Venkatachary and Kunduri Ramanjacharya, are children of Venkatamma who is elder sister of Perundevamma. Sole plaintiff's son Venkatachari was transposed as second plaintiff as per orders of trial Court in I.A. No. 114 of 1983, dated 28.06.1983. After death of second defendant, his children came on record as defendant Nos. 4 to 6. Defendant Nos. 7 and 8 were brought on record as legal representatives of defendant No. 3. During pendency of appeal suit before this Court, Tirumalacharyulu - sole appellant; died, and his wife and son are brought on record as legal heirs. The first respondent/second plaintiff also died and his legal heirs are brought on record as respondent Nos. 7 and 8 in appeal. Be it noted that defendant Nos. 4 to 8 in the suit (respondent Nos. 2 to 6 in appeal) remained ex parte before trial Court.
2. The suit was filed for partition of plaint 'A', 'B' and 'C' schedule properties. The lower Court passed preliminary decree on 26.03.1987 for partition and allotment of one-fourth share to plaintiff No. 2 and defendant Nos. 1 to 3 as per the suit prayer in respect of plaint 'A' and 'B' schedule properties excluding certain items in both the schedules. Aggrieved by the same, first defendant filed appeal. The plaintiffs also filed A.S. No. 1785 of 1989. Same lawyer represented them in their appeal as well as the appeal filed by first defendant. Efforts were made for compromise, in vain. In July, 2007, learned Advocate appearing for first respondent reported that he has given up Vakalat. The Court ordered administrative notice. The notices are served on the legal heirs of deceased first respondent, who are impleaded by order of this Court, dated 30.10.2006 in A.S.M.P. No. 1634 of 2006. In spite of the same, when the case is called, none appeared and therefore, under Order XLI Rule 17(2) of Code of Civil Procedure, 1908 (CPC), respondent Nos. 7 and 8 are set ex parte and the matter is heard from 27.03.2008 to 01.04.2008. Learned Counsel for appellants and learned Counsel for fifth respondent are heard along with A.S.M.P. No. 611 of 2008 filed by the latter. In this Judgment, parties are referred to by their status in the suit. Background of the case and pleadings
3. In this case, as seen from the record, plaint was amended thrice. Issues were recast once and additional issues were framed twice. It is, however, not necessary to summarise the pleadings in detail instead the background of the case leading to filing of the suit may be noticed in brief. The parties to the suit are closely related. All of them claimed descendancy and roots from one Chakravartula Tatacharyulu, S/o Raghunadhacharyulu. The following genealogy table would show the relationship of parties and their rank in the suit.
GENEALOGY Raghunathacharyulu I | Chakravarthula Tata Chari I | ___________________|________________________________ | | Raghunathacharyulu II Tirumalacharyulu I | | Singarachari (died 1914) Tatachari II(died 1898) = Seethamma (wife) (died 1943) =Seenamma (wife) (died 1941) | ________________________________________|___ | | Kunduri Venkatamma (died 1958) Kandadai Perundevamma (Plaintiff No.1)(died 1989) =Raghavachari (husband) (died 1950) =Sundarachari (husband) (died 1936) | | | _________________|_______ | | | | Venkatachari Ramanujacharya | (Defendant No.2) (Defendant No.3) | _________________________________________| | | Chakravarthula Tirumalacharya II Kandadai Venkatachari (Defendant No.1) (Defendant No.4: transposed as plaintiff No.2)
4. Chakravartula Tatacharyulu-I or his father Raghunadhacharyulu-I did not own any properties. Raghunadhacharyulu-II and Tirumalacharyulu-I are sons of Tatacharyulu-I. Tirumalacharyulu-I had only son, by name, Tatacharyulu-II, who died in 1898, leaving behind his wife Seenamma and his two daughters, Konduri Venkatamma and Kandadai Perundevamma (first plaintiff). Raghunadhacharyulu-II also had one son, Singarachari, who died in 1914, leaving behind his wife Seetamma. It is admitted by all that the branch of Raghunadhacharyulu-II alone had properties, which are either imams (grants) or self-acquired properties and branch of Tirumalacharyulu-I or his son Tatacharyulu-II never owned any properties.
5. Perundevamma, first plaintiff, was married to Sundarachari, who died in 1936. She has two sons Tirumalacharyulu-II (first defendant) and Kandadai Venkatachari (fourth defendant, later second plaintiff). The other daughter of Seenamma and Tatacharyulu-II has two sons, namely, Venkatachari and Ramanjacharya, who are defendant Nos. 2 and 3. The dispute raised in the suit is by Perundevamma and her younger son, Venkatachari, against elder son Tirumalacharyulu-II, who admittedly had been managing all the properties except those who were in possession of third parties. He also claims that some of the properties were gifted to him by his disciples (sishyas). The dispute raised by Kandadai Venkatachari is that Seetamma, who died in 1943, owned plaint schedule properties. After her death, property reverted to the heirs of Tatacharyulu-II i.e., Perundevamma and Venkatamma, and that being their children second plaintiff and defendant Nos. 1 to 3 are entitled to reversionary rights to the estate of Seetamma. Initially Perundevamma filed suit claiming half share but after her son defendant No. 4 transposed as plaintiff No. 2, no amendment was sought with regard to the relief.
6. The case of Tirumalacharyulu-II - natural brother of second plaintiff - is as follows. During her lifetime, his grandmother Seenamma adopted him, as a result of which, he became Chakravartula Tirumalacharyulu-II. As he was only male member of Chakravartula family, Seetamma, W/o Singarachari, belonging to branch of Raghunadhacharyulu-II, executed a Will, dated 14.2.1353F (14.2.1943), bequeathing all her properties to first defendant. It is also his further case that historically and traditionally, family of Raghunadhacharyulu-I and after him, Chakravartula Tatacharyulu-I have been Gurus (preachers) and that being the adopted son of Tatacharyulu-II and Seenamma, and also by virtue of Will executed by Seetamma, he continued tradition of being Guru and that during Sishyasancharam in various villages, his disciples gifted some properties to him. He admitted that he does not have any concern with regard to items 3, 6 to 8, 20 and 23 of plaint 'A' schedule properties, as these items do not belong to Chakravartula family. In addition to this, he also pleaded that items 4, 5, 12 and 24 were in occupation of third parties by reason of sale or encroachment and that items 9, 10 and 11 were gifted by his disciples or sishyas2, whereas other items are self-acquired properties of first defendant. The other properties, which he claimed, devolved on him under the Will of Seetamma. He also admitted that Tatacharyulu-I, Tirumalacharyulu-II and his father Sundarachari never owned any properties and all the properties were acquired by Raghunadhacharyulu-II, husband of Seetamma. He claims the properties not by reason of adoption, but under the Will executed by Seetamma. However, according to him, by reason of his adoption to Seenamma, he became member of Chakravartula family and continued family tradition of going for sishyasancharam.
The learned trial Judge initially framed eight issues. Issue No. 8 concerned with the plea of adverse possession by first defendant, was again recast and four more issues were added. In addition to this, on 13.08.1985, four issues were framed and yet again on 23.09.1986, seven more issues were framed. As pointed out by learned Counsel for appellants, eleven issues were framed and recast encompassing controversy. These issues are:
1) Whether the particulars mentioned in the pedigree and the plaint schedules are correct?
2) Whether the plaintiff is the owner of the suit properties and obtained them by succession?
3) Whether items 5, 9 to 11 of the plaint schedule properties ever belonged to the predecessor in title of the plaintiff?
4) Whether items 4, 13, 14 and 16 to 18 of plaint schedule properties are in the possession of third parties as alleged by first defendant and if so, with what effect?
5) Whether defendant No. 1 was in possession of the suit properties as caretaker on behalf of the plaintiff?
6) Whether the suit is within limitation?
7) Whether the suit without a prayer for declaring the adoption of defendant No. 1 as void is maintainable?
8) Whether D.1's title has become perfect by adverse possession as mentioned in para 10 of his W.S?
9) Whether the suit is bad for mis-joinder of parties?
10) Whether the adoption of D.1 is true and valid?
11) To what relief?
7. The first plaintiff was examined as P.W.1. P.Ws.2 to 5 are examined and Exs.A.1 and A.2 are marked. The fourth defendant who was supporting the case of his mother Perundevamma examined himself as D.W.1. He again was examined as P.W.6, after he was transposed as second plaintiff. D.W.3 and D.W.7 supported the case of first defendant. Exs.B.1 to B.50 were marked. Ex.B.10 is college leaving certificate of first defendant and Ex.B.11 is the Will by Seetamma in his favour. Exs.B.8 and B.9 are Court proceedings between the parties in earlier litigation. Exs.B.13 to B.19 are revenue records/revenue entries. In addition to this, sale deeds executed by first defendant were marked to prove that some of the suit schedule properties were already sold.
8. After considering oral and documentary evidence, learned trial Judge held that items 5, 9 to 11 of plaint 'A' schedule never belonged to predecessors of plaintiffs, that items 4, 13, 14 and 16 to 18 are in possession of third parties as averred by first defendant and that other properties were in possession of first defendant. Learned Judge also held that without plaintiffs' seeking declaration that adoption of first defendant is not valid, they can maintain the suit for partition and that suit is not barred by limitation. On the question of adoption, learned trial Judge held that the adoption of first defendant by Seenamma is not true and valid. It was also held that Seetamma and Seenamma both had sishyasancharam and being eldest son of first plaintiff, first defendant was called Chakravartula Tirumalacharyulu. Insofar as Ex.B.11, Will, is concerned, trial Court came to conclusion that Ex.B.11 is not a genuine document and that first defendant failed to prove the same. In view of challenge to these findings on the main aspects of the case, three questions concerning adoption, limitation and Will required to be considered in Appeal. Question of Adoption
9. First defendant opposed the suit on two grounds. That he has been adopted by grandmother Chakravartula Seenamma and therefore, he is alone entitled to have sishyasancharam as heir of Chakravartula clan. Besides allegation that some of the items of suit schedule devolved on him under Ex.B11, Will, he contended that his disciples gifted certain items of suit schedule properties, and therefore, they cannot be partitioned. There is no documentary evidence directly dealing with adoption ceremony. Adoption ceremony invitation card correspondence, if any, between first plaintiff and his mother Seenamma or other relatives etc., are not on record. D.W.5, by name, Chakravartula Venkata Rangacharyulu is examined to speak about fact that first defendant is adopted son of Tatacharyulu-II (Seenamma's husband). He also deposed that Seetamma executed Ex.B.11, Will, in his presence in which she admitted first defendant as adopted son while bequeathing all her properties and sishyasancharam to first defendant. Indeed, statement that Seetamma executed Ex.B.11 Will in his presence remains unchallenged in cross-examination. He further deposed that the marriage of first defendant was performed with one of his cousins and that his father and mother being nearest agnates participated in the marriage in the place of natural parents of first defendant. D.W.2 in his evidence while stating that his surname is Chakravartula, that he is adopted by Tatacharyulu-II and that he was never described, in his childhood and thereafter with surname Kandadai. He also deposed that Seenamma had permission from her husband to take him in adoption and that she had obtained permission from his agnates like Chakravartula Nallan Venkata Varadacharyulu, who with his wife Kanakamma performed 'upanayanam' of first defendant. He marked besides other documents Exs.B.3 to B.8, B.10, B.11 and B.22 to show that after his adoption by Seenamma, all the agnates and third parties, who had dealings with him recognised him as adopted son of Chakravartula family. Before examining documents, it has to be noticed that by the time Seenamma adopted first defendant, her husband Tatacharyulu-II died in 1898. It is also to be noticed that after death of Seenamma, as deposed by him, it is the first defendant who is performing annual obsequial ceremonies of Seenamma and her husband. This is also corroborated by D.W.5, when he stated that he attended one such annual ceremony at Gudur. P.W.1 and D.W.1, however, deposed that first defendant was not adopted by Seenamma, that P.W.1 did not give any consent for adoption and that there is no custom in the family for adopting son of a daughter. P.W.1 and P.W.2 are interested witnesses and their evidence is not corroborated by any other witnesses who gave oral evidence.
10. Exs.B.5, B.6, B.7, B.8 and B.22 are documents of different kinds to which first defendant and second plaintiff are parties in one way or the other. In all these documents, first defendant is described as Chakravartula Tirumalacharyulu, and not as Kandadai Tirumalacharyulu.
(i) Ex.B.5 is in urdu and as per appendix of evidence to the lower Court Judgment it is a sale deed executed by Chakravartula Tirumalacharyulu-II, in favour of second plaintiff in respect of 137 square yards.
(ii) Ex.B.6:It appears in 1961, there was a dispute with regard to house No. 6/650 and appurtenant land, between second plaintiff and first defendant. The dispute was referred to arbitration by M/s. Hayagrivachari, Sarpanch, Nellutla Seshagiri Rao and Vanam Lakshmi Narasimha Rao. They gave award Ex.B.6, dated 19.3.1961. In this award, first defendant is described as Chakravartula Tirumalacharyulu-II.
(iii) Ex.B.7, dated 09.06.1961 is an objection petition filed by first defendant before Warangal Municipality. In this, first defendant alleged that second plaintiff submitted Ex.B.6 award, which is not signed that it was made without notice to first defendant, and that his brother is trying to construct a house on the vacant site in to house No. 6/650. In this document also, first defendant is described as Chakravartula Tirumalacharyulu, S/o Tatacharyulu, whereas second plaintiff is described as Kandadai Venkatachari, S/o Sundarachari.
(iv) Ex.B.22 is an inland letter, dated 25.07.1965 addressed by first plaintiff (obviously scribed by some one) to her son, first defendant. The letter was addressed to Chakravartula Tirumalacharyulu-II.
(v) Ex.B.8: In 1972, second plaintiff filed O.S. No. 387 of 1972 on the file of the Court of the Principal Munsif Magistrate, Warangal, for recovery of a sum of Rs. 3,184-37 against first defendant describing as Chakravartula Tirumalacharyulu, S/o.Tatacharyulu.
(vi) It is in the evidence of P.W.1 (first plaintiff) that first defendant studied Sanskrit whereas second plaintiff studied modern education. There is no dispute. Second plaintiff at the relevant time when he deposed as D.W.1 retired as Teacher whereas first defendant was doing sishyasancharam and was in spiritual pursuits. First defendant underwent Sanskrit course in Sriperumbudur Sanskrit College during 1933-1934. In school leaving certificate, Ex.B.10, which was given on 22.08.1974, first defendant is described as Ch.Tirumalachariar, S/o Thathachariar. This certificate also shows that first defendant was treated as member of Chakravartula family and not Kandadai family.
11. In addition to the above documents between the parties, in Exs.B.3, B.4 sale deeds executed by third parties in favour of first defendant and in revenue records, first defendant was described as Chakravartula Tirumalacharyulu. Thus, there is considerable documentary evidence at least from 1956 onwards to show that first plaintiff was treated as male heir of Chakravartula family and not Kandadai family. Evidence of D.W.1 and D.W.5 shows that first defendant was adopted by Seenamma and that is the reason why he was using surname Chakravartula. When a child is adopted, he loses the clan identity of natural family and acquires the surname of adopted parents. The fact that adoptee was known with surname of the adopted parents is significant proof of adoption. In a case of ancient adoption, which took place long prior to a case came to the Court, it would not be possible to prove the ceremony like Datta Homam associated with adoption. At or about the time of adoption, circumstances after adoption and long after adoption before litigation certainly probablise such adoption.
12. In this case, plaintiffs do not dispute that Singarachari, S/o Raghunadharyulu-II died in 1914 leaving behind him Seetamma and that the couple had no issues is admitted. It is also admitted that Tatacharyulu-II and Seenamma had only two daughters, Venkatamma and Perundevamma. They had no male issues. There is no dispute that Seetamma and Seenamma as belonging to two different Chakravartula branches of Tatacharyulu-I were having sishyasancharam in their respective villages and if no male heir is available to carry on the same, sishyasancharam will come to end in Chakravartula family of Tatacharyulu- I. Sishyasancharam would have been taken over by other agnates. Seenamma, therefore, adopted Tirumalacharyulu-II probably because by that time second plaintiff and defendant Nos. 2 and 3 were not born. In addition to these, circumstances that existed, that upanayanam was performed by Seenamma taking the assistance of father of D.W.5, Seetamma executed Ex.B.11 Will treating first defendant as adopted son of Seenamma. Tirumalacharyulu was known as Chakravartula Tirumalacharyulu. These pre and post adoption events would strongly probablise that first defendant was adopted by Seenamma.
13. In case of ancient adoption, it is very difficult to get evidence of Dattahomam as well as giving and taking of adoptee. If the boy is treated as adopted son by agnates, friends and third parties, it would certainly lead to a conclusion that there was an adoption even if direct evidence is not available. In Mulla's Hindu Law (fifteenth edition), Section 512 reads as below.
512. Burden of proof and evidence.- The fact of adoption must be proved in the same way as any other fact. There are no special rules of evidence to establish an adoption. But the evidence in support an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. That onus is particularly heavy where the adoption is made a long time after the date of the alleged authority to adopt. But when 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. 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.
14. The above section as it was appearing in thirteenth edition was cited with approval by Supreme Court in V. Ramarao v. K. Bhaskararao . It was observed that, "long lapse of time and recognition of adoptee by others gives rise to strong presumption in favour of validity of adoption."
15. In Debi Prasad v. Tribeni Devi , legal position with regard to proof of ancient transactions was explained as below.
In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
16. After taking overall view of evidence adduced in the case, this Court is satisfied that adoption by Seenamma as pleaded by first defendant Chakravartula Tirumalacharyulu is proved and question is answered accordingly. Question of 'Will'
17. The case of first defendant is that his natural father Sundarachari or adopted father Tirumalacharyulu-II never owned any property, and that all plaint 'A' schedule agricultural lands other than those which were in possession of third parties, were either inherited properties of Singarachari, husband of Seetamma, or the properties acquired by first defendant. He claims to have inherited the property under Ex.B.11, Will.
18. Ex.B.11 is dated 14.02.1353 Fasli (1943). Under this Will, Seetamma bequeathed all her properties to first defendant expressing her wish that he should take care of her needs and enjoy bequeathed properties as well as sishyasancharam accepting gifts given by disciples. By the time, the suit was filed in 1975, the Will was thirty two years old. It was scribed by one Addanki Singarachari of Shatapuram. The said scribe and two others attested Ex.B.11. They are Tirumala Nallan Venkata Varadacharyulu, resident of Sathapuram, Addanki Singarachari and Konduri Soma Reddy, Deshmukh of Gudur village. By the time, the Will was challenged by the plaintiffs, the testator, the scribe and attestors expired. D.W.1 who is beneficiary of Ex.B.11, Will, gave evidence as D.W.2. In his evidence, he deposed as follows.
19. My adoptive parents had never possessed any immoveable properties. The plaintiff is my natural mother. The plaintiff did not inherit any properties from her parents. I never managed the properties of the plaintiff. She never entrusted the management of properties at any time to me. Singarachari and his wife Seethamma had some patta lands. After the death of Singarachari his properties devolved on his wife Seethamma, from whom, I got the properties. Some of the properties which I admitted to be in my possession in the written statement are those that I got from Seethamma. Rest of the properties are my self acquisitions. Seethamma executed a Will in my favour bequeathing her properties in my name. I have filed the said Will deed in Court and it is Ex.B.11. Ex.B.11 was scribed by Addanki Singarachari. He died subsequently. Attestors of Ex.B.11 also died subsequently. The first attestor's sons are alive and grandchildren of second attestor are alive.
20. It is also in his evidence that after death of Seetamma, all the properties bequeathed under Ex.B.11, Will, devolved on him, that his name was entered in the khasra pahani and other revenue records, that he sold some of the properties and that he alone is the owner and possessor of items of property. His statement that first plaintiff did not inherit any property from her parents and that Seenamma had no properties of her own is also admitted by second plaintiff, who initially examined himself as D.W.1.
21. P.W.1 (first plaintiff) deposed that her father Tirumalacharyulu-II (adopted father of first defendant) owned suit properties, which are ancestral. She also deposed that after his father's death, the properties devolved on Singarachari, husband of Seetamma. Her husband Singarachari used to look after the properties. After her husband's death, first defendant who had come of age was asked to manage the properties and that he was alone managing properties for forty years. In her cross-examination she admitted that she is an illiterate person capable of only signing her name. She denied the suggestion that her predecessor never owned any properties. P.W.1's second son Kandadai Venkatachari, who was arrayed as fourth defendant gave evidence as D.W.1, who was also subsequently deposed as P.W.6. In his evidence, he however, admitted that his father Sundarachari did not inherit any property from Chakravartula Tatacharyulu-II, who had no properties of his own and that if his mother, P.W.1, had no right to the property, he cannot get any share in suit schedule properties. According to him, after death of Seetamma, properties of branch of Raghunadhacharyulu-II reverted to Tatacharyulu-II and therefore, being his daughter, P.W.1 is entitled to share in the property. He deposed in his evidence as below.
...My mother P.W.1 is having a half share in the suit schedule property. I do not know what my actual share is. But, I got a share in the property. If my mother did not get any share I am not entitled to the share. I have not made my appearance before succession proceedings. None of the persons who are alive who deposed before succession proceedings or appeared before the proceedings. One Konduru Venkatamma is my mother's elder sister.
...I have not filed any document to show that the suit schedule properties belong to Tatacharyulu, my maternal grandfather. I have no evidence also. It is not true to suggest that the entire suit schedule properties or self acquisitions by one Singarachari. Singarachari had no issues. After death of Singarachari, properties are devolved in the name of his wife Seetamma. It is not true to suggest that after death of Seetamma, property devolved on D.1.
...My mother is claiming these properties through Seenamma and Seethamma, wives of Chakravartula Tatacharyulu and Chakravartula Singarachari respectively. My mother is not daughter of late Ch.Singarachari. Apart from Exs.B.1 and B.2, I have no record to show that suit properties jointly belong to late Chakravartula Singarachari and Chakravartula Tatacharyulu. There is no record to show that my mother or mother of D.2 and D.3 ever possession or enjoying suit lands or paid the land revenue.... I and D.1 have no joint family properties to partition except the revertionary rights in my mother's property claimed in the suit.
22. Thus, it is clear that the dispute in the suit was in relation to the properties which were devolved on Singarachari and after his death on Seetamma. Ultimately father of first plaintiff had no properties. As all the properties are claimed by first defendant relying on Ex.B.11, Will, it assumes significance, because even if adoption of first defendant by grandmother Seenamma is not accepted, still the suit for partition is liable to be dismissed as the properties were bequeathed exclusively to first defendant by Seetamma under Ex.B.11.
23. As noticed supra, D.W.2 stated that Ex.B.11, Will, was scribed by Addanki Singarachari, who died and attestors also died. He, however, stated that first attestor's son is alive. First attestor is one Tirumala Nallan Chakravartula Venkata Varadacharyulu, who also performed 'upanayanam' of first defendant. His son, namely, Chakravartula Venkata Rangacharyulu, is examined as D.W.5. In addition to speaking about adoption and ownership to properties, he also spoke about execution of Will and identified the signature of his father as attestor in Ex.B.11. His evidence reads as below.
...To my knowledge Seenamma garu never had any property. Seetamma garu had lands at Guduru and another village. I do not remember the name of another village. Seetamma garu had executed a document in the year Swabhanu in my presence, at the village Shathapuram in my house. Then I was aged about 25 years. I did not attest the document. I remember that my father had attested that document. I can identify my father's signature if shown to me. Through that document, Seetamma garu admitted the adoption of D.1 by Seenamma garu and further bequeathed her properties to D.1 and wanted him perform her obsequies. The contents of the document were read over to her after scribing of the same and then she subscribed her signature in it in my presence. In my presence and in presence of attestors, she signed in the document. In her present, the witnesses were had attested. At that time, Seetamma garu was hale and healthy and she was of sound disposed state of mind. The said document is Ex.B.11. It bears signature of my father as its first attestor. The second attestor is one Singaracharyulu who is also the scribe of the document. The third attestor is Koduru Somareddy. He is Deshmuk of village Koduru. The said attestors and Seetamma garu had signed in the document in my presence.
24. Section 63 of the Indian Succession Act requires a Will to be attested. The same cannot be evidence of bequeath until at least one attesting witness is examined for proving the execution of Will as per Section 68 of Indian Evidence Act, 1872, subject to attesting witness alive and being capable of giving evidence. In case of death of the scribe and/or attestors, and it is not possible to comply with Section 68 of Indian Evidence Act, the Will cannot still be ignored. In such a situation, Section 69 of the Indian Evidence Act. It provides that if no attesting witness can be found, it must be proved that attestation of one attesting witness at least is in handwriting and that the signature of the person executing the document is in the handwriting of the person. D.W.5, who was present at the time of Ex.B.11, identified the signature of his father, an attesting witness, and also deposed that he saw Seetamma subscribing her signature in the presence of attestors and witnesses attesting the same. Therefore, Ex.B.11, Will, must be held to have been proved, especially when the evidence of D.W.5 remained unimpeached and especially when P.W.1 and D.W.1 did not bring in rebuttal evidence with regard to this aspect of the matter though both of them alleged that Ex.B.11, Will, is concocted document. Even on this allegation, the presumption adumbrated in Section 90 of the Indian Evidence Act cannot be ignored. Ex.B.11, is more than thirty years old and therefore, the Court can always draw presumption that the signature and every other part of Ex.B.11 is in the handwriting of Seetamma, especially when the same was exhibited by first defendant as D.W.2 from his custody. This Court accordingly holds that Ex.B.11, Will is proved and the subsequent dealings of first defendant with respect to the properties prove that all the properties devolved on him after death of Seetamma under Ex.B.11. Question of limitation
25. Two points arise under this heading. The trial Court framed an issue as to whether the suit is within limitation. The trial Court also framed an issue whether the suit without the prayer for declaring the adoption as void is maintainable and whether the suit is time barred. The trial Court having come to a conclusion that there was no adoption of first defendant by Seenamma held that the suit is not barred by limitation. Learned Counsel for appellants submits that as per Article 57 of Schedule of the Limitation Act, 1963, a suit for obtaining declaration that an adoption is invalid or never, in fact, took place has to be filed within three years from the date when adoption becomes known to the plaintiffs. According to learned Counsel though the suit was for partition, in effect the plaintiffs pleaded that adoption never took place and therefore, without seeking proper declaration that adoption is invalid, they could not have maintained the suit. He placed strong reliance on Full Bench Judgment of this Court in Janikamma v. Mattareddi AIR 1956 ANDHRA 141 (FB). He further points that in Exs.B.3 to B.8 and in Ex.B.22, first respondent was described by plaintiffs themselves as Chakravartula Tirumalacharyulu. Both of them are aware at least from 11.03.1961 when Ex.B.6 award was given by T.Hayagrivachari and others, and therefore, adoption ought to have been challenged within three years.
26. First plaintiff filed the suit claiming reversionary right to the estate of Seetamma. Second plaintiff, who was originally arrayed as fourth defendant, filed written statement supporting the plaintiff. In the written statement, first defendant pleaded adoption by Seenamma for the purpose of carrying on sishya sancharam as Chakravartula Tirumalacharyulu and for the purpose of bequeathing all plaint schedule properties by Seetamma. But for his adoption by her first defendant would not have taken the surname Chakravartula nor he could have been addressed by plaintiffs and third parties as Chakravartula Tirumalacharyulu. Therefore, there are strong reasons on probabilities to infer that plaintiff Nos. 1 and 2 were very much aware of first defendant's adoption prior to 1961 and they did not file a suit for declaration that adoption is invalid. Having failed to do so, can they maintain a partition suit claiming their reversionary right. This question is no more res integra.
27. In Janikamma (supra), suit was filed by presumptive reversioners to the estate of one late Venkatareddy seeking declaration that alienation made by second defendant (who was adopted son of late Venkatareddy) and his brother defendant No. 19 as invalid. The trial Court disbelieving adoption and holding that suit was not barred by limitation, decreed the suit declaring that the alienations are not binding on the reversionary heirs. The same was confirmed by District Judge in Appeal. In the second appeal before High Court, it was contended that though the suit was for the declaration of alienations as bad, in substance, it was a suit for declaration of adoption as invalid and therefore, the suit filed beyond six years was barred by Article 118 of Limitation Act (Article 57 in 1963 Act). When the matter was listed before learned single Judge it was referred to Division Bench. Having noticed sharp cleavage of judicial opinion, Division Bench referred two questions to the Full Bench. These are (i) whether a suit by a Hindu reversioner for a declaration that the alienation made by an alleged adopted son is not binding on him is maintainable? and (ii) whether a reversioner, who has not filed a suit for a declaration that an alleged adoption made by the widow is not binding on the reversioner within the prescribed time under Article 118 can, ignoring the said adoption, file a suit after the said prescribed time for a declaration that the alienation made by the adopted son is not binding on the reversion. The Full Bench considered history of declaratory relief and Section 42 of Specific Relief Act, 1877. Having noticed illustrations (e) and (f) to Section 42 of Specific Relief Act and various decided cases, while answering first question in the affirmative and the second question in the negative, Full Bench laid down as under.
28. From the aforesaid discussion of the case law, two principles emerge which, though apparently conflicting, are really reconcilable. A reversioner is entitled to ignore an adoption as a nullity and file a suit for possession after the death of the widow. As the declaratory relief is only a discretionary relief, it is at his option whether to seek that relief or not but, if he chooses to file a suit for a declaration that an adoption is not valid, that suit is governed by Article 118. If so much is granted, it follows that he cannot ask for a declaration on the basis of a consequential fact ignoring the adoption if, as a matter of fact, the question of the validity of the adoption is substantially involved in the relief asked for.
29. To illustrate, a suit for a declaration that an alienation made by an adopted son is invalid is, in substance, a suit for a declaration that the adoption is invalid for the alienation by the adopted son was a consequential act flowing from his right as adopted son. If the suit for a declaration that the adoption is invalid is barred by limitation, the other suit also would equally be barred, for it is the same suit in a different garb.
30. To put it differently, it is the substance that matters and not the form in which the plaint is couched. In this view, a suit for a declaration that an alienation made by an adopted son is not binding on the plaintiff would be maintainable as the provisions of Section 42, Specific Relief Act are complied with but that suit would be barred by limitation if it is filed more than six years after the date of the adoption.
31. Seetamma bequeathed properties to first defendant under Ex.B.11, Will, recognising her as an adopted son of Seenamma. The plaintiffs claim reversonary rights to the estate of Seetamma, and therefore, they ought to have challenged the adoption and sought for declaratory relief within limitation prescribed under law. Without specifically seeking a declaration regarding adoption of first defendant by Seenamma, the plaintiffs could not have filed a suit for partition because first defendant claimed the properties as adopted son of Seenamma belonging to Chakravartula clan. Even if there was no Ex.B.11 Will, it is only the first defendant who could have claimed reversionary rights excluding claim of daughters of Tatacharyulu-II, because they belong to Kunduri and Kandadai families. When Chakravartula family had a legal heir Tirumalacharyulu- II (first defendant), the claim of reversionary rights to the estate of Seetamma would not arise. Viewed in any manner, without seeking a declaration regarding adoption of first defendant, the suit for partition cannot be maintained. The suit though filed for partition, was ineffect, a suit for declaration that the adoption of first defendant by Seenamma is invalid. Probably for this reason issue No. 8 who was originally framed was recast on 02.03.1981 framing issue No. 10 as to whether adoption of first defendant is true and valid. Therefore, this Court holds that a suit is barred by limitation.
32. Before concluding this Judgment, the right of plaintiffs and defendant Nos. 2 and 3 for partition in respect of certain items of property which are specifically given up by first defendant, namely, items 3, 6 to 8, 20 and 23 of plaint 'A' schedule, has to be looked into. Plaintiffs claimed reversionary rights to the estate of Seetamma, but in view of her Will, Ex.B.11, they cannot have any right. Can there be a decree for partition? As admitted by D.W.1 (P.W.6), the claim for partition is sustainable only when claim of plaintiffs for reversionary rights to the estate of Seetamma is sustained. As the same is not sustainable, the question of partition of suit schedule does not arise. Secondly, as P.W.6, second plaintiff admitted that he is not going to accept items 3, 6 to 8, 20, 23 (items given up by first defendant) and items 4, 13, 14 and 16 to 18 (which were in possession of third parties by reason of sale by first defendant) of plaint 'A' schedule. Therefore, the suit must fail. A.S.M.P. No. 611 of 2008
33. This is an application filed by fifth respondent in Appeal under Order XLI Rule 27 of Code of Civil Procedure, 1908 (CPC), praying this Court to receive four documents as additional evidence. The application cannot be accepted for two reasons. The fifth respondent herein was not original party to the suit. She was impleaded as seventh defendant after death of her husband Kunduri Ramanjacharyulu, who was third defendant in suit. She remained ex parte. She did not even file written statement. Though this appeal was admitted on 07.11.1987, she appeared through the counsel only on 12.06.2007. This application is also filed on the same date. The belated effort to bring in additional evidence probably to help first defendant/appellant cannot be treated as valid application under Order XLI Rule 27 of CPC. Even otherwise, the application does not fall within the ambit of said provision. Therefore, it is liable to be dismissed. Accordingly, application stands dismissed.
34. In the result, for the above reasons, the Appeal is allowed. The Judgment and decree, dated 26.03.1987 in O.S. No. 57 of 1975 on the file of the Court of the Principal Subordinate Judge (now Principal Senior Civil Judge) Warangal are set aside and suit is dismissed. However, having regard to the fact that the respondents remained ex parte, there shall be no order as to costs.
1 The suffix Chari, Charya and/or Charyulu are used interchangeably in the pleadings as well as evidence and admittedly all are one and the same.
2 Sishyasancharam in Vaishnava sect refers to periodical tour undertaken by Gurus to different villages, where Sishyas reside. When Guru visits the village or house of Sishya on an invitation, it is also Sishya Sancharam. It is also the practice that Sishyas donate valuables including lands to Guru, out of devotion.