HONOURABLE Dr. JUSTICE
B.SIVA SANKARA RAO
APPEAL SUIT No.512 OF 1993
JUDGMENT:
The
three appellants who are the defendant Nos.1,2 and 8 out of 18 defendants among
whom the claim relating to 18th defendant-Union Bank of India was
dismissed as not pressed, in the suit O.S.No.21 of 1991 on the file of Senior
Civil Judge, Markapur, having been aggrieved by the judgment and decree dated
09.09.1992 in favour of the appeal 1st respondent-plaintiff,
granting the suit reliefs declaring the plaintiff got vested remainder right
and title over the plaint schedule item Nos.1 to 14 subject to the life estate
of his adopted mother Balamma (1st defendant-1st
appellant) and that the plaintiff is also entitled to half share in the
remaining items 15 to 34 of the plaint schedule properties for its partition by
metes and bounds and with costs, filed the appeal attacking legality and
correctness of said judgment and findings.
2. Before coming to the grounds of
appeal attacking legality and correctness of said decree and judgment allowing
the suit claim by the trial Court and what are the points that required for
determination on being formulated from rival contentions in this first appeal
and its scope, for better appreciation, the factual matrix of the case before
trial Court is the following:-
2a.
The case of the plaintiff, in brief, is as follows:-
The
plaint schedule properties are joint family properties of Munaga Naga Subbaiah (issueless through his
wife Bujjamma), and his undivided brother Venkata Subbaiah (who got a son by
name Kotaiah through his wife Narasamma), the sons of late Lakshmaiah, that as
said Kotaiah- congenitally deaf and dumb, simpleton and remained
unmarried, Naga Subbaiah adopted Lakshmaiah (father of plaintiff), i.e. husband
of 1st defendant-Munaga Balamma according to law, that Naga Subbaiah and Venkata Subbaiah in
course of time passed away and also later said Lakshmaiah and his adopted
mother Bujjamma, in or about the year, 1930 and 1945 respectively and Narasamma,
wife of Venkata Subbaiah and the mother
of Kotaiah also died in or about the year,1950. The further averments are that
1st defendant-Munaga Balamma was managing the family properties on
behalf of Kotaiah also as he was incapable, that Balamma-the 1st
defendant duly adopted the plaintiff on 21.05.1964 as per Hindu Law and since
they belonged to Vysya community and thread ceremony and marriage of plaintiff
were also got performed by her, that adoption deed dated 21.05.1964 was also
executed by 1st defendant and
registered and said adoption was also admitted by her on several occasions,
that both of them were lying together till recently when the plaintiff shifted
to Vijayawada for better opportunities and prosperity, that with the adoption
of plaintiff he became coparcener and became entitled to half share in the
entire joint family properties of plaint schedule, that Kotaiah in the year
1958, during the time of Sivarathri festival escaped from the house and never
returned and his whereabouts were not known and deemed to have been died, that
on the death of Kotaiah, the plaintiff became sole coparcener in the joint
family that the plaintiff’s natural mother and the 1st defendant
were sisters and they had another sister by name Chenchamma (mother-in-law of 8th
defendant), that adoption of the plaintiff became an eyesore to Chenchamma, her
son Venkataramaiah and son-in-law-8th defendant, that they were
pursuing one desperate attempt to injure the plaintiff, that they easily
influenced the old lady Balamma and got several documents executed by her like
gift deeds, lease deeds, sale deeds, that all of which are nominal and
fictitious and not binding on the plaintiff as coparcener with joint and
constructive possession of suit properties, that 2nd defendant-wife
of 8th defendant and 3rd defendant are the daughters of
Chenchamma, that 4th-7th defendants are children of
Venkata Ramanaiah being grandchildren of Chenchamma, that 9th and 10th
defendants are brothers and 2nd defendant is their mother and 8th
defendant is their father, the 11th defendant is the husband of the
3rd defendant, that defendant Nos. 13 to 17 are the alleged aliens
in whose favour nominal deeds are said to have been executed which are not
binding on the plaintiff, that plaintiff came to know that the 9th
defendant and others raised loan from the ‘Union Bank of India, Kunchapalli
branch on the security of some of the suit properties by creating an equitable
mortgage and hence the suit claim.
2(b).
Among above referred defendants, the defendants 1 to 17 remained exparte having
been served and the 18th defendant-Union Bank of India only filed
written statement contending that 9th
defendant-A.Rama Subbarao approached their bank in December, 1987 for a loan
and offered to hypothecate Ac.3.00 in S.No.408, patta No.1206 i.e. in item No.3
of plaint schedule and produced settlement deed dt. 29.04.1987 executed by 1st
defendant and copies of other documents such as 10-1 account and adangal, that
they satisfied with regard to the title of the 9th defendant for an
undivided extent of Ac.3-00 in item No.3 and sanctioned the loan, that this
defendant being a nationalized bank cannot be attributed with any motives in
sanctioning the loan to the 9th defendant on the strength of the
hypothecation made by him, that since the suit is for partition, the property
hypothecated to their bank may be allotted to the share of 9th
defendant while adjusting equities, and their bank in which case will be able to realize the
amount and hence, to dismiss the suit.
2(c). From the
pleadings, the trial Court framed the following issues:-
i)
Whether
the adoption and adoption deed dated 21.05.1964 is true and valid?
ii)
Whether
the plaintiff got half share in the plaint schedule properties?
iii)
Whether
the settlement deed dated 19.09.1964 is true and valid?
iv)
Whether
the plaintiff is entitled for the partition and separate possession of the
share in the plaint schedule properties as prayed for?
v)
Whether
the plaintiff is entitled for any mesne profits?
vi)
What
equities are to be worked out in case of partition?
vii)
To
what relief?
2(d).
After framing of issues, from the suit claim against the 18th
defendant-Union Bank of India is dismissed later as not pressed and all other
defendants remained ex parte, the Court from the evidence of plaintiff
as P.W.1 with reference to Ex.A.1 registered adoption deed dated 21.05.1964 and
Ex.A.2 registered settlement deed dated 19.09.1964 executed by the 1st
defendant in favour of an adopted son-the plaintiff, from said evidence of the
claim held proved passed the ex-parte
decree and judgment as referred above.
3.
It is said judgment and decree of the trial Court is now impugned in the appeal
by the defendants 1,2 and 8 only among the ex parte defendants 1 to 17
on as many as 9 grounds with sum and substance that judgment and decree of
trial Court is contrary to law and weight of evidence, that trial court has
mis-read the scope of subject matter and also the evidence of P.W.1 and Exs.A.1
and A.2, that trial court has erred in thinking that plaintiff is entitled for
the relief of declaration not only with regard to item Nos.1 to 14 with vested
remainder rights as heir to defendant No.1 and also that he is entitled to half
share in all other properties, that the preliminary decree is bad in law in
view of illegal and irregular exercise of jurisdiction, that the trial Court
ought to have seen that the plaintiff has played fraud on the defendants and
misrepresented to them that the matter would be adjusted due to the
understanding arrived at between the parties, that the plaintiff would renounce
the suit claim and give up his claim etc., and thereby sought for setting aside
the decree and judgment of the trial Court and dismiss the plaintiff’s suit
claim. In the appeal, in fact the plaintiff served as 1st respondent
only appeared and respondents 2,10 and 14 were unserved but for the remaining
did not choose to appear even served and so far as respondents 2,10 and 14, a
memo dated 31.12.2007 was filed by appellants of they even in trial Court
remained ex parte hence to dispense with notice. Thus, the appeal contest
is between the appellants (defendants 1,2 and 8) and 1st
respondent-plaintiff. In the course of hearing, the counsel for the
appellants reiterated the same impugning the trial Court’s decree and judgment.
The parties are being referred to as were arrayed before the trial Court.
4)
From the above the points arise for consideration are:-
a) Whether the plaintiff is not the
adopted son of 1st defendant and not entitled to the vested
remainder right and title over the plaint schedule item Nos.1 to 14 subject to
the life estate of 1st defendant and also to half share in the
remaining items 15 to 34 of the plaint schedule properties for its partition by
metes and bounds ?
b)
To what result?
Point-1:
5. Even in the grounds of appeal
referred supra, there is no attack on the Ex.A.1 adoption deed and Ex.A.2
settlement deed executed by 1st defendant in favour of the plaintiff
by adopting him no other than one of her sister’s son and by settling her
properties referred above by reserving lifetime position and enjoyment with
vested remainder absolute rights and there is also no dispute on the settled
position that cousin (Kotaiah) of 1st defendant’s husband a mentally
challenged to some extent while confined to house left home and whereabouts
were not known from pretty long time to say deemed died and for the said family
plaintiff is only the male descendant as his adoption was prior to missing of
said Kotaiah and apart from the fact that a coparcenery even suspended and
discontinued from lack of male descendants as coparcenery members of joint
family, after plaintiff’s adoption along with his adopted father’s cousin Kotaiah, though an infirm
person were the coparceners. Leave as it
is any further discussion not required to go into, even taken for argument’s
sake, 1st defendant absolutely entitled for the estate, by virtue of
Ex.A.1 adoption and Ex.A.2 settlement for no any anti-adoption agreement even,
entitled to succeed that was considered by the trial Court in passing
preliminary decree and there is nothing to attack by the appellants-defendants
1,2 and 8 and it is not even their case by any additional evidence petition to
attack the suit claim from evidence of P.W.1 with reference to Exs.A.1 and A.2.
Thus, there are no tenable merits in the appeal. Accordingly, point-1 is answered.
Point-2:
6. In the result, the appeal is dismissed
by confirming the trial Court’s decree and judgment. There is no order as to
costs.
_________________________
Dr. B. SIVA
SANKARA RAO, J
Date:
11-12-2013
VVR
