Andhra HC (Pre-Telangana)
Sri Gandrapu Gangaraju Choultry Rep. By ... vs G.S.V.V. Appa Rao And Ors. on 30 April, 2008
Equivalent citations: AIR 2009 (NOC) 447 (A.P.), 2009 (2) ABR (NOC) 382 (A.P.) 2009 (2) AJHAR (NOC) 505 (A. P.), 2009 (2) AJHAR (NOC) 505 (A. P.), 2009 (2) AJHAR (NOC) 505 (A. P.) 2009 (2) ABR (NOC) 382 (A.P.), 2009 (2) ABR (NOC) 382 (A.P.)
Author: G. Rohini
Bench: G. Rohini
JUDGMENT G. Rohini, J.
1. The plaintiff in O.S. No. 63 of 1972 on the file of the Court of the Subordinate Judge, Kovvur preferred this appeal aggrieved by the dismissal of the suit by judgment and decree dated 25.11.1981.
2. The plaintiff claims to be a charitable institution namely Sri Gandrapu Gangaraju Choultry, Polavaram village in West Godavari District, represented by its Executive Officer appointed under the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966. The suit is filed seeking a decree against the defendants for recovery of possession of the plaint schedule properties allegedly endowed to the plaintiff choultry by one Gandrapu Gangaraju and mesne profits from the date of the suit. The plaintiff also sought for rendition of accounts claiming that the 1st defendant was managing the suit schedule properties as well as the choultry. The defendants 16 and 18 are the brothers of the 1st defendant whereas the defendant No. 15 is the purchaser of one of the items of the suit property from the defendant No. 1. The defendants 2 to 14 and 17 were allegedly in possession of the suit schedule properties as tenants of the plaintiff choultry under the 1st defendant. The suit was contested by all the defendants except defendants 12, 14 & 15 who remained ex parte. After hearing both the parties, the Court below by judgment and decree dated 25.11.1981 dismissed the suit with costs payable by the Department of Endowments, represented by the Assistant Commissioner of Endowments, Eluru. Hence, this Appeal.
3. The plaint averments, in brief, are as follows:
The plaintiff choultry was constituted in the year 1910 by late Gandrapu Gangaraju who endowed the suit schedule properties to the plaintiff choultry under a Registered Will dated 7.10.1910. The daughter-in-law of late Gangaraju by name Smt. Mangamma and two others were named as Trustees under the Will authorizing them to fill-up the vacancies if any in the Trust Board with suitable persons, making it clear that the first trustee should be chosen only from the family of the testator. Under the Will late Gangaraju also gave consent for adoption of a boy by his daughter-in-law Smt. Mangamma since his only son Gandrapu Lakshmi Narasimharao was issueless and predeceased him. It was averred in the plaint that during the lifetime of Gangaraju, the suit properties were handed over to the plaintiff choultry and Smt. Magamma had adopted a son who was also named as Gangaraju. After the lifetime of Gangaraju, his daughter-in-law Smt. Mangamma acted as the first member of the trust board and was performing Annadanam. The suit properties were also maintained by her as managing trustee of the plaintiff choultry. After her death, her adopted son Gangaraju took up management of the choultry as well as the properties endowed to it and continued Annadanam in the choultry. After his death, his son - the 1st defendant also performed Annadanam in the choultry for sometime and was managing the suit schedule lands by leasing out the same to others. However, he discontinued the same for the last ten years and leased out the choultry building to the defendant No. 11 for running a military hotel. In the circumstances, though an Executive Officer was appointed by the Commissioner of Endowments to manage the affairs of the plaintiff choultry, the 1st defendant failed to hand over the records and other properties to the Executive Officer. The defendants 2 to 15 and 17 also refused to deliver the properties in spite of notices issued by the Executive Officer. Hence, the suit alleging that on account of the collusion among the defendants the plaintiff choultry was being deprived of its legitimate income and that on appointment of the Executive Officer under the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, who was a de jure trustee, the 1st defendant ceased to have any right to remain in possession and management of the suit properties.
4. The 1st defendant in his written statement though admitted his relationship with late Gandrapu Gangaraju denied constitution of the plaintiff choultry by late Gangaraju. He also denied execution of the will dated 7.10.1910 by late Gangaraju endowing the suit properties to the choultry. It was pleaded by the 1st defendant that Smt. Mangamma, the daughter-in-law of late Gangaraju, adopted a son on 22.10.1910 according to Hindu Sastras. Thereafter, Gangaraju died and all his properties including the plaint schedule properties devolved on the adopted son of Smt. Mangamma (father of the 1st defendant)by survivorship. The plaint averments that during the lifetime of Gangaraju the properties endowed to the choultry were handed over to it and there was mutation in the revenue records was specifically denied and it was pleaded that the plaint schedule properties were in possession of the father of the 1st defendant eversince he was taken in adoption and the same remained in his possession and enjoyment in his own right till his death. After his death, the 1st defendant continued in possession and enjoyment of the said properties in his own right. The names of the 1st defendant and his father were shown in the relevant records from the beginning and they were also granted pattas under the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 after conducting due enquiry. The plaint averment that Annadanam was being performed in the choultry by Smt. Mangamma and after her death the father of the 1st defendant continued the same being the managing trustee was also denied and it was pleaded that there was no choultry at all at any time and no Annadanam was performed. Though it was admitted that the plaintiff got issued a registered notice dated 12.9.1971 calling upon him to hand over the records and properties to the Executive Officer, it was pleaded that the 1st defendant got issued a reply disputing the plaintiff's claim. Thereafter the plaintiff filed O.P. No. 73 of 1969 before the Deputy Commissioner of Endowments, Kakinada for issuance of a certificate under Section 93 of the A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1966 alleging that the 1st defendant did not deliver the records of the choultry. The said proceedings were contested by the 1st defendant and ultimately O.P. No. 73 of 1969 was dismissed by order dated 10.2.1970 holding that there was no proof to show that there was a choultry and that the 1st defendant was entrusted with its management. It was also pleaded that out of Item No. 2 of the suit schedule land admeasuring Ac.5-05 cents, the 1st defendant sold away Ac.1.00 to the defendant No. 15 under a registered sale deed about four or five years ago. The extent of Item No. 4 of plaint schedule property was disputed and the plea that the defendants 12 and 14 were the tenants of some of the properties was also denied. The 1st defendant also took an alternative plea in the written statement contending that even assuming that late Gangaraju executed the will dated 7.10.1910, since the father of the 1st defendant was taken in adoption by Smt. Mangamma which related back to the date of death of her husband, late Gangaraju had no capacity to endow the suit properties to the alleged choultry and the will was void in law.
5. The defendants 2 and 3 filed a separate written statement on the same lines and the defendants 4 to 11 and 13 adopted the written statement of the 1st defendant.
6. Defendant No. 16, who is the younger brother of the 1st defendant, in his written statement while reiterating the plea that there was no choultry at all, contended that the suit was barred by limitation and that there was no cause of action for the suit.
7. On the basis of the above pleadings, the Court below settled the following issues as well as additional issues:
1. Whether the plaintiff is entitled for possession of the schedule properties?
2. Whether the will dated 7.10.1910 executed by late Gangaraju is not true, valid and binding on D-1 and others?
3. Whether the plaintiff is not a charitable institution and not entitled to file this suit?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the suit as framed is not maintainable?
6. Whether the plaintiff has got no title to the suit property at all? 7. To what relief ?
Additional issues:
1. Whether the suit is in time?
2. Whether there was any choultry by name Gandrapu Gangaraju Choultry in existence at any time?
3. Whether the suit properties ever vested in plaintiff?
4. Whether the will dated 7.10.1910 is enforceable in respect of undivided half or any part of the suit land and whether the testator had any right to execute the same?
5. Whether G. Mangamma acted as Managing Trustee at any time?
6. Whether D-1 acted as defacto-trustee?
7. Whether the plaintiff is entitled to any and if so to what account against whom?
8. Whether 16th defendant and his brothers perfected title by adverse possession?
9. Whether this Court has jurisdiction to try the suit in view of the proceedings of Inams Abolition Tribunal?
10. Whether the plaintiff's claim is not barred by res judicata by virtue of the decision of the Inams Abolition Tribunal?
11. To what relief?
On behalf of the plaintiffs, nine witnesses were examined and Exs.A-1 to A-42 documents were marked. On behalf of the defendants eleven witnesses were examined and Exs.B-1 to B-19 documents were marked.
On appreciation of the evidence both oral and documentary, the Court below held that execution of Ex.A-1 Will dated 7.10.1910 by late Gangaraju was established by the plaintiff. It was also held that Smt. Mangamma adopted a son on 22.10.1910 during the lifetime of Gangaraju and consequently Gangaraju, not being the last surviving coparcener, was not competent to execute Ex.A-1 Will disposing of the joint family properties. Thus, it was concluded that Ex.A-1 Will was invalid and not binding on the defendants. It was also held that the plaintiff Choultry was not in existence at any point of time and that the suit properties never vested with the choultry. Accordingly, Issue Nos. 2 & 6 and Additional Issue Nos. 2, 3 & 4 were answered against the plaintiff. In view of the above findings, Issue Nos. 1 & 3 and Additional Issue Nos. 5, 6 & 7 were also held against the plaintiff. So far as Additional Issue Nos. 1 & 8 relating to limitation, it was held that the suit properties were enjoyed by Smt. Mangamma and her adopted son subsequent to the death of Gangaraju as their own properties but not as trustees of the alleged choultry and therefore the plea of limitation did not arise as no title vested with the plaintiff for the suit properties at any point of time. Thus, it was concluded that the suit itself was not maintainable as there was no institution in the name and style of the plaintiff choultry. In the result, the suit was dismissed with costs. We have heard the learned Counsel for both the parties and perused the material on record.
Before referring to the elaborate arguments advanced by the learned Counsel, we would like to recapitulate some of the undisputed facts as under:
Late Gandrapu Gangaraju and his son Gandrapu Lakshmi Narasimha Rao constituted a joint family possessing large extents of immovable properties. Gandrapu Lakshmi Narasimha Rao predeceased his father Gandrapu Gangaraju. Since he was issueless, Smt. Mangamma, the widow of Lakshmi Narasimha Rao adopted a son for her deceased husband who was also named Gangaraju.
Throughout the judgment under appeal, the Court below addressed Gandrapu Gangaraju and his grandson Gangaraju (son adopted by Smt. Mangamma) as Senior Gangaraju and Junior Gangaraju respectively and for the sake of convenience we too follow the same. We shall also refer the parties to this Appeal hereinafter as plaintiff and defendants as they were arrayed in the suit. It is not in dispute that Gandrapu Lakshmi Narasimha Rao died on 17.9.1910. Thereafter his father Senior Gangaraju executed Ex.A-1 Registered Will dated 7.10.1910 constituting a trust for a charitable purpose of performing Annadanam in a choultry in Polavaram village and endowing certain immovable properties mentioned thereunder for maintenance and upkeep of the choultry. Smt. Mangamma, the daughter-in-law of Senior Gangaraju and two others were named as trustees in Ex.A-1 Will empowering them to fill up the vacancies in the trust board as and when arose with suitable persons. However, it was made clear that the first member of the trust board shall always be from the family of the testator - Senior Gangaraju. Under Ex.A-1 Will, Smt. Mangamma - the daughter- in-law of Senior Gangaraju was also permitted to take in adoption a boy of her choice as per the authority given by her deceased husband. That apart, several items of properties were bequeathed by Senior Gangaraju under Ex.A-1 to his close relatives including Smt. Mangamma and the rest of the properties were set apart to the son to be adopted by Smt. Mangamma. Admittedly Senior Gangaraju died on 27.10.1910.
Though the fact that Smt. Mangamma adopted a son (Junior Gangaraju) for her deceased husband was not in dispute between the parties, according to the defendants the said adoption took place on 22.10.1910 while Senior Gangaraju was alive. On the other hand, the plaintiff contended that Junior Gangaraju was taken in adoption after the death of Senior Gangaraju. The fact that Smt. Mangamma died sometime in the year 1935 and Junior Gangaraju died in the year 1964 leaving behind his sons - defendants 1, 16 & 18 - is also not in dispute. The suit was filed in the year 1972 alleging that in terms of Ex.A-1 Will though the charitable trust came into existence and Annadanam was performed in the choultry initially by Smt. Mangamma and the same was continued by Junior Gangaraju and also by the 1st defendant for sometime subsequently the 1st defendant discontinued Annadanam and started misappropriating the suit properties endowed to the trust. Per contra, the case of the defendants is that the charitable trust never came into existence and that the suit properties were in possession and enjoyment of Smt. Mangamma and Junior Gangaraju subsequent to the death of Senior Gangaraju as their own properties and thereafter the 1st defendant and other sons of Junior Gangaraju succeeded to the same by inheritance. Though the defendants denied the very execution of Ex.A-1 Will by Senior Gangaraju, as noticed above, the trial Court did not accept the same. However, the trial Court held that Ex.A-1 Will was invalid since Senior Gangaraju was not competent to execute the same and that the plaintiff choultry was not in existence at any point of time.
In this Appeal, it is contended by Sri M. Adinarayana Raju, the learned Counsel appearing for the appellant, that the Court below committed a grave error in holding that Ex.A-1 Will dated 7.10.1910 executed by Senior Gangaraju was void and that no Choultry by name 'Sri Gandrapu Gangaraju Choultry' was in existence at any time.
8. The learned Counsel for the appellant vehemently contended that in the absence of any material evidence to establish that junior Gangaraju was taken in adoption prior to the death of senior Gangaraju, the Court below ought to have held that senior Gangaraju being the sole surviving male member of the joint family was the full owner of all the properties and consequently the dispositions made by him under Ex.A-1 were valid. It is also contended that the power of adoption given to Smt. Mangamma, the widow of the pre-deceased co- parcener, under Ex.A-1 Will was not exercised by the date of death of senor Gangaraju and, consequently, notwithstanding the unexercised power of adoption possessed by Smt. Mangamma, senior Gangaraju was competent to alienate the family properties as an absolute owner. In support of the said submission, the learned Counsel placed reliance upon the decision in Mahadeo v. Rameshwar . On other hand, Sri V.L.N.G.K. Murthy, the learned Counsel appearing for the respondents while supporting the finding recorded by the Court below that Ex.A-1 Will was invalid and not binding on the defendants, submitted that even if the appellant's contention that Junior Gangaraju was taken in adoption after the death of Senior Gangaraju is accepted, by virtue of the doctrine of relation back the adoption has to be traced back to the date of death of his adoptive father - Lakshminarasimha Rao and consequently Ex.A-1 Will is rendered void. In the light of the rival submissions made by the learned Counsel, the following points arise for consideration in this appeal:
(1) Whether Senior Gangaraju executed Ex.A-1 Will dated 7.10.1910?
(2) Whether Ex.A-1 Will dated 7.10.1910 is valid and enforceable?
(3) Whether the plaintiff choultry was in existence at any time and whether the suit properties vested with it?
POINT No. 1:
9. At the outset, it is to be noted that Ex.A-1 was a Registered Will and the certified extract of the same was marked in evidence through P.W.1 - the Executive Officer of the plaintiff choultry. Since none of the attestors of Ex.A-1 Will were alive, the plaintiff relied upon Exs.A-34 to A-37 and Ex.A- 42 documents to prove the execution of the Will. Exs.A-34 to A-37 are the sale deeds executed by Junior Gangaraju which specifically referred to Ex.A-1 Will while tracing the title to the properties sought to be sold under the said documents. Ex.A-42 is an extract of Mortgage Deed executed by one Rayaparaju which also contained a specific recital that the property belongs to the mother of the executant who got it under Ex.A-1 Will executed by Senior Gangaraju. Since execution of Exs.A-34 to A-37 and Ex.A-42 documents could not be disputed by the 1st defendant, the Court below was justified in holding that Senior Gangaraju executed Ex.A-1 Will and we do not find any justifiable reason to interfere with the said finding.
POINT No. 2:
10. Admittedly, Senior Gangaraju along with his son Lakshminarasimha Rao constituted a joint family and the suit properties form part of joint family properties. It is not in dispute that Lakshminarasimha Rao was issueless and he predeceased his father Senior Gangaraju. The fact that Senior Gangaraju died on 27.10.1910 is also not in dispute. In between on 7.10.1910 Senior Gangaraju executed Ex.A-1 Will constituting the plaintiff trust and endowing a part of the joint family properties for its maintenance. It is also an admitted fact that Smt. Mangamma, the widow of Lakshminarasimha Rao, adopted a son for her deceased husband as per the authority given by her husband. However, as noticed above, the dispute is with regard to the date of said adoption - whether it was during the lifetime of Senior Gangaraju or thereafter?
It was contended by the plaintiff that on the death of Lakshminarasimha Rao on 17.9.1910, his father Senior Gangaraju remained as the sole surviving coparcener till his death and thus he was competent to execute Ex.A-1 Will disposing off the joint family properties as per his wishes. Accordingly, it was contended that Ex.A-1 Will was valid, enforceable and binding on the defendants.
However, the 1st defendant pleaded that Junior Gangaraju was taken in adoption on 22.10.1910 while Senior Gangaraju was alive. Thus, it was contended that Senior Gangaraju was not the sole surviving coparcener by the date of his death and therefore Ex.A-1 Will was rendered void since the disposition of any portion of the joint family property or even his undivided share by a Will was impermissible as per the law then existing.
At the outset, it is to be noted that either in the notices issued before filing the suit particularly Ex.A-30 notice, or in the plaint the plaintiff did not plead that the adoption of Junior Gangaraju took place after the death of Senior Gangaraju. As a matter of fact, in Ex.A-31 dated 30.9.1971 which was a Reply given by the 1st defendant to Ex.A-30 Notice, it was specifically mentioned by the 1st defendant that the adoption took place on 22.10.1910 during the lifetime of Senior Gangaraju. However, the plaintiff did not dispute the same. Even in the plaint, the plaintiff did not come up with any specific plea that the adoption took place after the lifetime of Senior Gangaraju nor the version of the 1st defendant in Ex.A-31 Notice that the adoption took place on 22.10.1910 was disputed.
It is also relevant to note that in his written statement, the 1st defendant again reiterated that Junior Gangaraju was taken in adoption on 22.10.1910 in the presence of Senior Gangaraju during his lifetime. However, the plaintiff did not choose to file a rejoinder denying the date of adoption as pleaded by the 1st defendant. The failure of the plaintiff in disputing the specific plea of the defendants undoubtedly amounts to an admission of the version of the defendants that the adoption took place during the lifetime of Senior Gangaraju. However, the learned Counsel for the appellant while placing reliance upon the decision of the Supreme Court in Ram Sarup Gupta v. Bishum Narain Inter College contended before us that either the failure of the plaintiff to traverse the allegations made by the defendants or non-framing of an issue by the Court cannot be put against the plaintiff. In support of the said contention, the learned Counsel also cited a Division Bench decision of this Court in Thota Rambabu @ Ramu v. Cherukuri Venkateswara Rao .
The ratio laid down in Ram Sarup Gupta's case (2 supra) that the Court has to ascertain the substance of pleadings and it is not desirable to place undue emphasis on form and no pedantic approach should be adopted to defeat justice has no application to the instant case since there was no plea at all at any stage of the proceedings disputing the date of adoption claimed by the 1st defendant. The facts in Thota Rambabu's case (3 supra) are also entirely different from the facts and controversy involved in the present case. As a matter of fact, in the case on hand the plaintiff had failed not only to take a plea but also to produce any evidence to rebut the specific version of the 1st defendant that the adoption took place during the lifetime of Senior Gangaraju on 22.10.1910.
It is also relevant to note that the authority to adopt a son was given to Smt. Mangamma by her deceased husband himself in the presence of the elders. The said fact was specifically mentioned by Senior Gangaraju in Ex.A-1 Will while reiterating his concurrence to the authority already given by his deceased son. As per the Hindu Law then existing, a widow was competent to adopt a son for her deceased husband with the authority given by him during his lifetime. The consent of the nearest Sapinda is required only in the absence of such authority from the deceased husband. Hence, the contention of the plaintiff that the adoption took place only after the death of Senior Gangaraju when Ex.A-1 Will had become operative has no legal basis and cannot be accepted in the absence of any supporting evidence.
Even otherwise, we are of the opinion that having pleaded that the adoption of Junior Gangaraju took place on 22.10.1910, the defendants have successfully discharged the burden of proof placed on them by producing acceptable evidence. Admittedly the adoption took place in the year 1910 whereas the suit was filed in the year 1972 after about 60 years. In spite of the long lapse of time, the defendants could examine D.W.2 who had personal knowledge about the factum of adoption of Junior Gangaraju. D.W.2 deposed that he was born in the year 1899 and by the date of adoption which took place in the year 1910 he was aged about 11 years. He also stated that he attended the ceremony of adoption along with his father and that he remembered that Senior Gangaraju was present at the time of adoption.
The other witness who spoke about the factum of adoption was the defendant No. 1 himself who got himself examined as D.W.1. He was aged about 49 years at the time of giving evidence. He said that he was informed by his father (Junior Gangaraju) that he was taken in adoption on 22.10.1910 and that Senior Gangaraju died thereafter. Nothing contra could be elicited by the plaintiff in the cross-examination of D.Ws.1 & 2.
Though the learned Counsel for the appellant vehemently contended that the evidence of D.W.1 who was not even born at the time of adoption was of no value and even the evidence of D.W.2 who was an young boy of 11 years age at the time of the adoption could not be given any weight and therefore practically there was no evidence to prove the adoption of Junior Gangaraju, we are unable to agree.
11. Having regard to the circumstances discussed above and particularly since the adoption in question was of the year 1910, whereas the suit was filed in the year 1972 which could come up for trial sometime in the year 1977, it may not be possible to produce any better evidence than the evidence of D.Ws.1 & 2. At any rate, in the absence of any evidence contra, we are of the opinion that there is absolutely no justifiable reason to disbelieve the oral evidence of D.Ws.1 & 2 and the same is quite sufficient to establish that Junior Gangaraju was taken in adoption by Smt. Mangamma on 22.10.1910 during the lifetime of Senior Gangaraju.
12. Thus, by the date of death of Senior Gangaraju on 27.10.1910 there were two coparceners in the joint family viz., Senior Gangaraju and Junior Gangaraju - the adopted son of late Lakshminarasimha Rao. Consequently, though Ex.A-1 Will was executed by Senior Gangaraju prior to adoption while he was the sole surviving coparcener, since by the date of his death i.e., when the Will became operative Junior Gangaraju also became a member of the joint family, the Will was rendered invalid and unenforceable. In the light of the above finding reached by us the decision of the High Court of Bombay in Mahadeo's case (1 supra) has no application to the instant case.
13. As a matter of fact, even if the case of the plaintiff that Junior Gangaraju was taken in adoption after the death of Senior Gangaraju is accepted, in our opinion, Ex.A-1 Will cannot stand the scrutiny of law. The law is well settled that under the Hindu Law an adopted son continues the line of the adoptive father for secular and spiritual purposes and when a widow adopts a son to her husband the doctrine of relation back makes sonship retroactive from the moment of the death of her late husband and thus the adopted son is deemed to have been born on the date of death of the adoptive father. In other words, the doctrine of relation back is based on a legal fiction that there should be no gap or break in the continuance of line of adoptive father. { vide Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar and Ors. }. By virtue of the above doctrine, it follows that Junior Gangaraju shall be deemed to have been born on the date of death of his adoptive father Lakshminarasimha Rao on 17.9.1910. Thus, he became a member of the joint family of Senior Gangaraju w.e.f. 17.09.1910 itself thereby rendering Senior Gangaraju incompetent to execute Ex.A-1 Will disposing off the joint family properties.
Thus, viewed from any angle, Ex.A-1 Will was invalid and unenforceable.
POINT No. 3:
14. To show that the plaintiff choultry was brought into existence by Smt. Mangamma and Annadanam was performed by her as well as Junior Gangaraju during their lifetime, the plaintiff examined P.Ws.2 to 8. All of them deposed that Annadanam was being performed in the choultry. As a matter of fact, in the plaint it was pleaded by the plaintiff that the choultry was in existence even before the execution of Ex.A-1 Will and Senior Gangaraju was performing Annadanam during his lifetime. However, Ex.A-1 did not support the said plea of the plaintiff. What all could be gathered from the recitals of Ex.A-1 was the intention of the testator to create a trust to perform Annadanam in future after his death. The testator also gave the names of the trustees which included his daughter-in-law Smt. Mangamma, making it clear that while filling up the vacancies in the trust board the first member shall always be appointed from his own family. Admittedly, Smt. Mangamma died in the year 1935. However there is absolutely no evidence on behalf of the plaintiff to show what happened thereafter and whether anybody else from the family of Senior Gangaraju came into the trust board. There is also no evidence to show that the other two persons named by Senior Gangaraju in Ex.A-1 ever acted as trustees and whether anybody else was co-opted after their death. It was observed by the trial Court that the son of the second trustee was alive by the date of the trial, but he was not examined by the plaintiff. It is also relevant to note that the plaintiff could not produce any revenue record to support its case that the suit properties vested with the choultry. Though some of the revenue records were marked as Exs.A-38 to A-41, the same reflected the name of Junior Gangaraju as pattadar and possessor and there was no reference to the plaintiff choultry at all. No other revenue record was produced by the plaintiff to show that there was mutation of suit properties endowed under Ex.A- 1 in favour of the choultry. It is also an important fact to note from the evidence of P.Ws.2 to 8 that there was a fire accident in the village in the year 1928 on account of which the choultry in which Annadanam was being performed was completely burnt. The evidence of P.Ws.2 to 8 was silent as to how Annadanam was continued thereafter. In the circumstances, the oral evidence of P.Ws.2 to 8 is not of any help to establish the existence of the plaintiff choultry at any time.
15. It is true that the only document which carries some weight is Ex.A-2 dated 9.1.1969 under which the Commissioner of Hindu Religious Institutions & Endowments appointed an Executive Officer to the plaintiff choultry. However, no other material could be produced by the plaintiff to show that any kind of control was exercised by the Endowments Department over the plaintiff choultry at any point of time. On the other hand, O.A. No. 73 of 1969 filed by the plaintiff choultry under Section 93 of the A.P. Charitable and Hindu Religious Institutions & Endowments Act was dismissed by the Deputy Commissioner under Ex.A-6 order holding that no choultry was existing. Hence, we do not find any reason to interfere with the conclusions arrived at by the Court below that there was no institution in the name and style of plaintiff choultry at any time.
However, the learned Counsel for the appellant while placing reliance upon a decision of this Court in M.A. Ramanujacharyulu v. M. Venkatanarasimhacharyulu vehemently contended that since the intention of Senior Gangaraju to create a charitable trust and to dedicate the plaint schedule properties for performing Annadanam is manifest from the recitals in Ex.A-1 Will, the Court below ought to have held that the trust was in fact created and came into existence notwithstanding the subsequent conduct of the 1st defendant. While relying upon the doctrine of cy pres, the learned Counsel for the appellant further contended that it is obligatory on the Court to implement the intention expressed by the settler of the trust as nearly as possible by framing a scheme and giving suitable directions for fulfilling the objects of the trust. In support of the above submission, the learned Counsel relied upon the decision of the Supreme Court in Ratilal v. State of Bombay . While submitting that some of the dispositions made by Senior Gangaraju under Ex.A-1 Will were acted upon and the defendants had accepted certain benefits under the Will, the learned Counsel for the appellant also contended that the defendants are bound by the doctrine of election and it is obligatory for them to accept the whole contents of Ex.A-1 Will which included the establishment and maintenance of the choultry. For the said proposition, the learned Counsel cited the decisions in Beepathuma v. Shankaranarayana , Srinivasagam v. Chinnammal and K. Shanmugham v. S. Shanmugham . We are unable to agree with any of the above contentions raised by the learned Counsel for the appellant.
It is to be noted that the adoption of Junior Gangaraju by Smt. Mangamma for her deceased husband itself was on the basis of the authority given by her husband. Ex.A-1 Will by Senior Gangaraju authorizing his daughter-in-law Smt. Mangamma to adopt a son as per the consent given by his deceased son cannot be construed as a document giving consent for adoption of Junior Gangaraju. Since admittedly the husband of Smt. Mangamma gave his consent to take in adoption a son, the adoption of Junior Gangaraju cannot be held to have been emanated from Ex.A-1 Will. As held in Narasimham v. Rukmaniamma AIR 1923 Madras 225 and Vallabhalalji v. Mahalaxmi Bahuji the consent of nearest Sapinda of the widow is necessary only in the absence of the authority of the husband. Hence, the recital in Ex.A-1 Will has no relevance and is of no consequence so far as the adoption of Junior Gangaraju is concerned. Moreover, as expressed above, Ex.A-1 Will by Senior Gangaraju was rendered invalid since by the date it became operative the joint family was consisting another coparcener. Thus the adopted son (Junior Gangaraju) acquired the properties in question being the sole surviving coparcener but not under Ex.A-1 Will. Hence, the doctrine of election has no application to the present case. Similarly, having regard to the finding already recorded by us that the choultry was never in existence at any time, the doctrine of cy pres is also not applicable.
16. For the aforesaid reasons, we are of the opinion that Ex.A-1 Will was not valid and unenforceable and the suit properties never vested with the trust since there was no valid creation of trust at all.
17. As expressed above, it is also clear that no trust was created at any point of time and Smt. Mangamma, Junior Gangaraju and thereafter the 1st defendant were enjoying the suit properties in their own right by inheritance.
18. Hence, the Court below had rightly dismissed the suit.
19. The findings recorded by the Court below and the conclusions arrived at are unassailable and therefore the interference by this Court is unwarranted.
20. In the result, the Appeal is dismissed. No costs.