Andhra Pradesh High Court - Amravati
Pidugu Padmavathi Devi vs Challa Adilakshmi on 11 May, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.433&472 of 2018
COMMON JUDGMENT:
Parties to S.A.No.433 of 2018 and S.A.No.472 of 2018 are same. The dispute that arises between them in both the second appeals are same. Therefore, both the appeals are to be considered together and they are to be disposed of by a common judgment.
2. O.S.No.9 of 2002 was a suit filed before learned Principal Senior Civil Judge, Narasaraopet and O.S.No.63 of 2002 also was a suit before the same Court. Plaintiffs in the second suit are defendants in the first suit. Both the suits were tried together and common evidence was recorded for both the parties in both the suits and by a common judgment dated 11.10.2011, the learned Principal Senior Civil Judge, Narasaraopet dismissed O.S.No.9 of 2002 and decreed O.S.No.63 of 2002. That led the loosing parties to prefer two appeals. Plaintiffs in O.S.No.9 of 2002 who lost their suit, filed A.S.No.96 of 2011 and the same parties who are defendants in O.S.No.63 of 2002 filed A.S.No.97 of 2011 before the learned XIII Additional District Judge, Narasaraopet. Learned first 2 Dr. VRKS, J S.A.Nos.433&472 of 2018 appellate Court heard both appeals together and by a judgment dated 17.11.2017, he dismissed both the appeals and thereby confirmed the judgments and decrees passed by the learned trial Court. That made the loosing parties to come to this Court and they preferred two Second Appeals. S.A.No.433 of 2018 assails the judgment and decree in A.S.No.96 of 2011 which arose out of O.S.No.9 of 2002 and S.A.No.472 of 2018 assails the judgment and decree in A.S.No.97 of 2011 which arose out of O.S.No.63 of 2002.
3. Both the appeals have been filed under Section 100 CPC. Respondents in both the appeals having lodged their caveat, received notices and made their appearance through their learned counsel. These two appeals have come up for hearing before admission. Learned counsel on both sides submitted arguments. To appreciate what is sought to be agitated by the appellants in both the appeals, there is a need to see what unfurled before the Courts below. There was a woman by name Smt. Pidugu Mahalaxmamma and she married a man but they were not blessed with children throughout their lifetime. She owned and possessed an immovable property in the form of tiled 3 Dr. VRKS, J S.A.Nos.433&472 of 2018 house bearing door No.18-202 at Tatikalavari street, Patimeeda, Chilakaluripet within the limits of Chilakaluripet Municipality of Guntur District and that was the subject matter of O.S.No.63 of 2002 referable to S.A.No.472 of 2018. She also had three money deposits lying with the Post Master, Head Post Office, Chilakaluripet. Those three money deposits were the subject matter of O.S.No.9 of 2002 referable to S.A.No.433 of 2018.
4. The controversy between the parties has the following facts and events.
Smt. Pidugu Mahalaxmamma after the death of her husband adopted her husband's brother's son, Omkara Radhakrishna Murthy. This adoption was subsequently registered. Ex.A1 is the adoption deed dated 07.03.1977. Sometime later, the adopted son Sri Omkara Radhakrishna Murthy died intestate. His wife, son and daughter are claiming to be the legal heirs of the deceased Sri Omkara Radhakrishna Murthy and filed O.S.No.9 of 2002. Their claims is that Smt. Mahalaxmamma died and on her death, her adopted son was the legal heir. As he predeceased, his wife and children are entitled to claim the properties of late Smt.Mahalaxmamma. In 4 Dr. VRKS, J S.A.Nos.433&472 of 2018 O.S.No.9 of 2002, they did not sue for entire property and they sued only for recovery of the three deposits lying with the Post Office. The need for filing the suit aroses since late Smt.P.Mahalaxmamma kept one Smt. Challa Adi lakshmi as her nominee for those deposits. Plaintiffs in O.S.No.9 of 2002 claim that a nominee is only an agent and the estate of the deceased belonged to the legal successors and therefore they sued the nominee and the Post Master.
5. The above stated nominee by name Smt. Challa Adi lakshmi has got a different version. She claims that while she was at the age of eight years she was fostered by Smt. P.Mahalakshmamma. The dispute arose between P.Mahalaxmamma and her adopted son Sri Omkar Radhakrishna Murthy and as a consequence a registered relinquishment deed dated 12.02.1982 was executed by her adopted son whereunder he received money and relinquished all his rights over the estate of his adopted mother. In that view of the matter, the wife and children of the adopted son have no legal claim over the estate of late Smt. Mahalakshmamma. The further contention raised was that Smt.Mahalakshmamma was 5 Dr. VRKS, J S.A.Nos.433&472 of 2018 looked after by this fostered daughter and out of that affection, she executed an unregistered will deed dated 18.11.2001 and therefore, the whole of the estate of late Smt.Mahalakshmamma was bequeathed to her foster daughter Smt.Challa Adilakshmi. By virtue of this will, the wife and children of adopted son hold no legal interest and claim over the estate of late Mahalakshmamma. Since, already there is a suit in O.S.No.9 of 2002 pending concerning deposits lying with the Post Master, this legatee under the bill who is stated to be the fostered daughter filed O.S.No.63 of 2002 seeking for declaration that she is the title holder of suit schedule immovable property. It is stated that after the death of Smt.Mahalaxmamma, the wife and children of the adopted son unlawfully occupied the old house and therefore the fostered daughter/legatee also sought for recovery of possession and prayed for past and future profits. It is with these claims she sued the wife and children of adopted son by filing O.S.No.63 of 2002.
6. After receiving pleadings in both the suits, the learned trial Court settled issues in both the suits and during the course of trial PWs1 to 4 and Exs.A1 to A11 and Exs.X1 and X2 are on one side and the evidence of DWs1 to 4 and Exs.B1 to 6 Dr. VRKS, J S.A.Nos.433&472 of 2018 B28 are on the other side were collected. After considering the entire evidence on record and after hearing arguments on both sides, the learned trial Court in its meticulously rendered judgment recorded the following findings:
1. Smt late P.Mahalakshmi adopted Sri.Omkara Radhakrishna Murthy.
2. Parties to the adoption belong to Brahmin community and the evidence established that the boy was aged 20 years by the time of adoption and by virtue of Section 10 of Hindu Adoption and Maintenance Act, 1956 such adoption was invalid and there was no evidence to prove that in Brahmin community in these parts a child could be adopted beyond the age of 15 years. Therefore legally, adoption is invalid and as a consequence the wife and children of adopted boy by name Sri. Omkara Radhakrishna Murthy are not legal heirs to Smt.P.Mahalaxmamma.
3. Ex.B20-relinquishment deed is a registered document and evidence proved the genuineness of it by virtue of which adopted son Omakara Radhakrishna Murthy completely relinquished his rights over all the properties of his adoptive mother Smt.P.Mahalaxmamma.
Therefore, on the death of P.Mahalaxmamma and Omkara Radhakrishna Murthy, the wife and children of the adopted son Omkara Radhakrishna Murthy have no claims and rights over the estate of late Mahalaxmamma. 7
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4. On facts and evidence, it was completely proved that Smt.Challa Adi Lakshmi was fostered by late Mahalakshmamma and the fostered daughter was given education and was nurtured and her marriage was solemnised and thereafter the fostered mother Mahalakshmamma lived with her fostered daughter at sattenapalli and the fostered daughter had taken care of all the needs and well being and attended all her medical needs and finally while the old women was with her fostered daughter, the old woman died on 20.12.2001.
5. The old woman Smt. Mahalakshmamma during her lifetime executed Ex.B23 which is an unregistered will dated 18.11.2001 and its execution and genuineness were proved by the evidence of the attestors and the scribe and the beneficiary.
6. By virtue of Ex.B23 will, the entire estate of late Smt.Mahalakshmamma which include three deposits lying with the Post Office and the immovable property where the family of the deceased adopted son are living devolved on the fostered daughter.
7. Based on the above findings, the learned trail Court dismissed O.S.No.9 of 2002 and decreed O.S.No.63 of 2002.
8. All the facts and questions that were raised before the learned trial Court were also raised before the learned first appellate Court by the loosing parties and their both appeals 8 Dr. VRKS, J S.A.Nos.433&472 of 2018 were keenly dealt with by the first appellate Court and it found that the findings recorded by the trial Court were based on valid evidence and they categorically established all the facts and the conclusions reached at by the trial Court are accurate and the enunciation of law about invalidity of adoption as rendered by the trial Court was found to be in accordance with law. It was in that view of the matter, the learned first appellate Court dismissed both appeals.
9. Thus, as against concurrent findings of the two Courts below, the plaintiffs in O.S.No.9 of 2002 who are the defendants in O.S.No.63 of 2002 have preferred these two appeals in which they engrafted the following substantial questions of law and claim that they arise in these appeals and seek for admission of these appeals. Be it noted that the substantial questions of law raised in the memorandum of both the appeals are same. The following are the substantial questions of law proposed by the appellants for consideration of this Court.
• That late Mahalaxmamma never disputed the factum of adoption and the validity of adoption for about 35 years, the adoption was believed and after 9 Dr. VRKS, J S.A.Nos.433&472 of 2018 her death, the third party cannot question the validity of adoption. Whether an unregistered will could be accepted without explanation of suspicious circumstances staring against it?
• That there is judicial precedent holding that in Brahmin community adoption is valid even if the adopted boy is aged more than 15 years old and the Courts below gravely erred in ignoring it. • Hand writing expert's opinion was not marked as an Exhibit and the expert was not examined but the Courts below erroneously looked into the opinion expressed by the expert in its report.
• Without the intervention of the Courts, these appellants obtained another opinion from the same expert and the first appellate Court failed to accept it as an additional evidence.
• When a document is aged more than 24 years old, it could not be used for comparison of signatures but the Courts below erred in doing it.
10. It is on these points, the learned counsel for appellants argued that these appeals deserve admission. 10
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11. As against it, the learned counsel for respondents in both the appeals submitted that a Second Appeal cannot gain admission unless the appellants are able to show substantial questions of law arose between the parties to the litigation and that any error in appreciation of evidence and even an error in appreciation of law cannot enable admission of a Second Appeal unless those errors go to the root of the matter and a different view would alter the conclusions reached by both the Courts below. Learned counsel argued that the questions proposed in the memorandum of grounds of appeal were the questions that were well considered by both the Courts below and flawless judgments were rendered by both the Courts below and having received adverse findings, these appeals are filed by the appellants showing the same points as substantial questions which is impermissible. It is argued that on the evidence on record, the questions proposed do not arise at all as they were conclusively concluded by both the Courts below and that sitting in Second Appeal this Court shall not disturb the concurrent findings of the Courts below and there is no merit in these two appeals and they shall be dismissed. 11
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12. It is in the light of these rival submissions and the questions that are proposed in the memorandum of grounds of appeal, this Court has to deal with the dispute between the parties to find out whether these two appeals are to the legal satisfaction of this Court to formulate any substantial questions of law for granting admission of these two appeals.
13. The chronological events are as mentioned below.
Smt. Mahalakshmi adopted Sri.Omakara Radhakrishna Murthy under Ex.A1 registered adoption deed dated 07.03.1977. The adopted son Sri.Omkara Radhakrishna Murthy executed Ex.B20 registered relinquishment deed dated 12.02.1982 whereunder he received money from Smt.Mahalakshmamma who is his adoptive mother and relinquished all his rights over the property of his adoptive mother. Smt.Mahalakshmamma executed Ex.B23 unregistered will dated 18.11.2001 bequeathing her estate in favour of her fostered daughter Smt. Challa Adi Lakshmi. Smt.Mahalaxmamma died on 20.12.2001 as evidenced by Ex.B27 death certificate.
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14. The factum of adoption of Omkara Radhakrishna Murthy by Smt.Mahalaxmamma was initially disputed by the fostered daughter but the learned trial Court on full appreciation of the evidence and after referring to the above referred relinquishment deed as well as unregistered will, it found recitals from the hand of Smt.Mahalaxmamma about the factum of adoption. Therefore, based on proper appreciation of oral and documentary evidence, the learned trial Court as well as appellate Court recorded their findings and observations that Smt.Mahalaxmamma adopted Sri Omkara Radhakrishna Murthy.
15. The said adoption was questioned on legal front by the fostered daughter. The adoption deed itself indicated and the other documents also indicated that by the time this adoption took place Sri Omkara Radhakrishna Murthy was aged 20 years. The adoptive mother and the adopted boy belong to Brahmin caste of Hindu religion. Initially, plaintiff in O.S.No.9 of 2002 did not have any averments about any particular custom prevalent among Brahmins of that region to have adoption of a child aged beyond 15 years. After the fostered daughter 13 Dr. VRKS, J S.A.Nos.433&472 of 2018 questioned legality of this adoption by her averments in the written statement, the plaintiffs in O.S.No.9 of 2002 got their plaint amended wherein they incorporated pleadings that in Brahmin Caste in that region there has been a custom prevalent by which adoption of a boy beyond the age of 15 years is in practice. In proof of this, they examined PW.3. His evidence was meticulously analysed by the trial Court and it found that it did not establish the proof of custom. This Court does not find absolutely any reference to any legal authority cited by the plaintiffs in O.S.No.9 of 2002 bringing it to the notice of the Courts below, that courts in this state have recognized about the custom among Brahmins for adoption of a boy beyond 15 years old. While hearing the arguments in these two appeals, the appellants have not brought to the notice of the Courts any particular precedent. It is in the light of these facts, the question proposed in this Second Appeal stating that there is a judicial precedent to the effect that in Brahmin community there has been a custom permitting adoption of a boy beyond 15 years age is to be considered. Before this Court no such legal recognition by way of any legal precedent is cited by the learned counsel. Custom has to be pleaded and proved. When both the Courts 14 Dr. VRKS, J S.A.Nos.433&472 of 2018 below held that there was no evidence establishing such custom and when there was no other case where such custom was recognized by a Court of law and when no legal authority was shown to exist that in Brahmin community in these parts, there was such a custom, then this Court is obliged to approve the factual findings recorded by both the Courts below between the parties that there was no proof of custom. On this aspect no substantial questions of law has arisen.
16. The factum of adoption stood proved, the invalidity of adoption stood proved. However, these aspects by themselves cannot create a legal consequence disabling anyone from questioning the adoption. It may be true that while the adoptive mother and the adopted son were in good relationship, they together alienated certain properties of adoptive mother. However, that by itself could not have any bearing on the estate left by the deceased adoptive mother. It is the legal heirs of adopted son who have initiated the legal proceedings wherein they claimed the factum and legality of the adoption they propounded. Having so raised their pleadings in the suit it is not within their grasp to say that the opponent cannot be 15 Dr. VRKS, J S.A.Nos.433&472 of 2018 permitted to question the legality of adoption. A substantial question of law proposed in these grounds of appeal inform this Court questioning the legal power of the respondent in questioning the legality of adoption. Neither statute nor precedent was argued before the Courts below or before this Court on this aspect. Their common logic employed in raising this question cannot be commended and there is absolutely no substantial questions of law that has come up in that regard.
17. Running into several paragraphs, the evidence of fostered daughter/DW1 and the evidence of PWs.1 and 2 and the facts that were elicited during the cross-examination of PWs.1 and 2 and after considering Exs.B3 to B5 photographs and Ex.B9 study certificate of fostered daughter and Ex.B10 study and conduct certificate of fostered daughter and Ex.B11 wedding card of fostered daughter, the learned trial Court recorded its findings that from her childhood Smt. Mahalaxmamma fostered Smt. Challa Adi Laxmi and educated her and solemnised her marriage. The learned trial Court extensively went into Exs.B22to25 which are about medical treatment, diagnostic reports pertaining to Smt. Mahalaxmamma and it considered 16 Dr. VRKS, J S.A.Nos.433&472 of 2018 Exs.B16toB18-telephone bills that stood in the name of Smt. Mahalaxmamma and Ex.B15-telephone demand notice and held that for several years preceding her death Smt. Mahalaxmamma was under the care and custody of her fostered daughter Smt. Challa Adi Laxmi. It was in the lights of these facts and circumstances, the learned trial Court analysed Exs.B23 unregistered will. It stated that by the evidence of DWs.2 to 4, the scribe and attestors of this will who categorically testified about the execution of will by late Smt. Mahalaxmamma, and from the evidence of PW1 and other witnesses it did not find any suspicious circumstances and then finally concluded that Ex.B23 will was proved. In the memorandum of grounds of appeal, it is stated that when a will changes the course of natural succession, it shall not be accepted unless the suspicious circumstances are explained. No suspicious circumstances are available from the record. No suspicious circumstances are really shown to this Court. The health and sound mindedness of the testatrix of the will and her affinity with her fostered daughter are all facts established by evidence. Such cogent evidence convinced the Courts below. This Court finds no imperfection in the appreciation of material 17 Dr. VRKS, J S.A.Nos.433&472 of 2018 on record by either of the Courts below. Therefore, between the parties no substantial question of law has arisen about the unregistered will executed by Smt.Mahalaxmamma.
18. It was at the behest of the wife and children of adopted son Ex.B23 will was sent to hand writing expert to find out whether it bore the signature of late Smt. Mahalaxmamma or not. The admitted signature in Ex.A1 adoption deed was used as a standard and the hand writing expert rendered an opinion saying that the person who signed Ex.A1 is the person who signed on Ex.B23 will. It is true that the hand writing expert was not examined by either of the parties. Thus, opinion of the hand writing expert in the form of substantive evidence was not available before the Courts below. However, after making complete discussion of other evidence on record, the learned trial Court also considered this expert's opinion and stated that the opinion of hand writing expert supports the claim of fostered daughter. It is true that a document that was not part of the record should not have been considered by a trial Court as well as first appellate Court. However, this violation of law by itself would not merit admission of Second Appeal for the simple 18 Dr. VRKS, J S.A.Nos.433&472 of 2018 reason that even after excluding that part of reasoning of the trial Court and first appellate Court concerning expert's opinion, still the evidence of attestors and scribe fully demonstrated the genuineness of the will. Therefore, the incorrect approach on part of the Courts below in considering a document that was not part of the evidence by itself has not gone to the root of the matter. In such a case, no substantial question of law arises.
19. The wife and daughter of adopted son during the pendency of the first appeal forwarded a photostat copy of Ex.A1 adoption deed and photostat copy of Ex.B23 unregistered will to the same hand writing expert and according to them they obtained a report from him wherein he found signatures on both the documents do not belong to the same person. It was that report of the expert which they intended to produce as additional evidence before the learned first appellate Court. However, that was denied by the first appellate Court wherein it cited two rulings of this Court to the effect that party's endeavour in obtaining opinion of a hand writing expert without the intervention of the Court cannot have any legal validity and therefore it refused to admit that additional evidence. In this 19 Dr. VRKS, J S.A.Nos.433&472 of 2018 Second Appeal, this aspect of the matter is challenged. Be it noted that the appellants have not brought to the attention of this Court any principle contrary to what the learned first appellate Court referred to in N.Sreenivasulu V. N. Prakash Reddy1 and Virothi Tirupati rao V. kota venu2. At any rate even if the first appellate Court allowed that evidence of the expert, it once again goes down to the fact that the same expert or different expert reached to a different conclusion than what was concluded by another expert. All these experts pertain to hand writing which is still an immature sign which do not render any conclusive assistance to a Court of law as against valid and strong evidence of attestors and scribe in proving the execution of the will. The opinions of these hand writing experts do not take the case any further. Even according to the appellants between Ex.A1 and Ex.B23, there is a quarter century gap. It was at their behest, documents were sent to hand writing expert. Now, they themselves contend that signatures divided by 25 years time span cannot be utilized for comparison. At any rate, the appellants before this Court have 1 2009 (4) ALD 745 2 2016 (4) ALD 674 20 Dr. VRKS, J S.A.Nos.433&472 of 2018 not brought to the satisfaction of this Court any substantial questions of law between the parties as contemplated under section 100 CPC. Therefore, these appeals cannot be admitted.
20. In the result, both the Second Appeals are dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.05.2023 DVS 21 Dr. VRKS, J S.A.Nos.433&472 of 2018 1 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.433&472 of 2018 Date:11.05.2023 DVS