GADEY VENKATA RATNAM Vs. GADEY SITARAMAYYA

JUDGEMENT

(1.) Appellant 1 here (since deceased) was the plaintiff in O. S. No. 20 of 1944 on the file of the Sub-Court, Coconada. He had filed that suit for a declaration that he was the nearest reversioner of one Gadi Venkataratnam and for the recovery of the suit properties, which had belonged to the said Venkataratnam, from respondent 1 who was claiming to be the validly adopted son of Venkataratnam, and from the other respondents who were alienees or tenants in respect of the properties. He had attacked the adoption of respondent 1 as invalid, and the will dated 13th December 1896, said to have been executed by the said Venkataratnam, as not genuine and as not executed in a sound and disposing state of mind and as therefore not conferring any authority on Viyyamma, Venkataratnam's widow, to adopt. He had contended further that, even if the will was genuine, the adoption was not in accordance with the authority conferred in the will, and that Ex. D. 9, the agreement dated 15th May 1897 executed in Viyyamma's favour by Surayya and Gopalakrishnamma two nearest Sapindas, authorising her to adopt any one she liked if they did not get a second son in ten years to give in adoption, was vitiated by improper motives and fraud, as executed for their own personal gain and in fraud of his reversionary interests, and was, therefore, not binding on him. The original of the will dated 13th December 1896 was not produced in Court, and defendant 1 alleged that it was lost, and produced Ex. D. 8 a registration copy of it, obtained as early as 1905, and that was marked in the lower Court with the consent of both sides. The lower Court held that the execution of the original and its genuineness were proved by the production of this ancient registration copy as well as by the evidence of D. W. 5 that his father had gone to Venkataratnam's house to attest the original. It held further that the will might on the strength of the production of this ancient copy be presumed to have been executed in a sound and disposing state of mind. Relying on the evidence of D. Ws. 2 to 6, eye-witnesses to the factum of adoption, and on the recitals in the adoption agreement in EX. D 7, it held that the factum of the adoption of defendant 1 Viyyammas sister's son, by Viyyamma in 1915, with Datta Homam and giving and taking and other formalities, had been fully proved. In that view, it dismissed the plaintiff's suit with costs as against the contesting defendants 1, 16, 17 and 19 to 21. It, however, at first, decreed the suit in favour of the plaintiff with mesne profits as against the ex parte defendants 2 to 9, 10 to 15 and 18, who were tenants and alienees in possession of some of the suit properties. An application under Section 151 and Section 152, Civil P. C. was put in by defendant 1 on 3rd January 1945 to cancel the decree against the ex parte defendants, as it was passed by accidental slip and omission and was against the definite finding of the Court that the plaintiff had no right to question the alienations of Viyyamma and to dismiss the suit as against them also. The plaintiff, of course, opposed this petition. But the lower Court allowed the petition and dismissed the suit as against the ex parte defendants also by an order dated 17th January 1945. This appeal is against that order of dismissal also. Appellants 2 and 3 are the plaintiff's sons and have been brought on record as the legal representatives of appellant 1.

(2.) To understand the case, the following geneological table may be found useful. It will be seen from the table that but for the adoption of defendant 1 by Viyyamma in 1915, the plaintiff, Venkataratnam, and his sons, appellants, 2 and 3 will succeed to the properties of the deceased Venkataratnam as the nearest reversioners. So, the all important question is whether the adoption of defendant 1 is true and valid. If it is true and valid, the plaintiff and his sons, appellants 2 and 3 have no right to question the alienations of Viyyamma or defendant 1 and the question of the lower Court's setting aside the decree it granted against the ex parte defendants will become purely a technical one, namely, whether it had power to do so under Sections 151 and 152, Civil P. C., or should have insisted on a review petition being filed with proper stamp duty by defendant 1 or insisted on the ex parte defendants filing a petition for setting aside the ex parte decree.

(3.) The question regarding the adoption of defendant 1 may be split up into three questions: (1) was there a giving and taking of defendant 1 by Viyyamma, Venkataratnam's widow, as Venkataratnam's adopted son, with datta homam and other ceremonies and formalities ?