KAKUMANI LAKSHMAMMA Vs. KAKUMANI CHINA KONDAYYA

JUDGEMENT

(1.) This is an appeal against the judgment of our learned brother, Ansari, J., in Second Appeal No. 1247 of 1954. Although the decision of this appeal depends upon a pure question of law, it would be necessary to set out in detail the facts giving rise to this appeal. The dispute is with regard to the properties of one Ramaswamy who was one of the three sons of Periah. Ramaswami died possessed of properties mentioned in plaint schedules A, B and C and 1/3rd share in D schedule lands.Ramaswamis father had three sons, Ramaswami, Ramiah and Poliah. These three brothers acquired considerable property, movable and innmovable, out of their joint labours. Poliah died leaving behind him his son, Periah. Somewhere about 1937 Ramaswami, his brother, Ramiah and his nephew, Periah (son of Poliah) divided he properties and in the aforesaid partition A to C schedule properties and an undivided 1/3rd share in D schedule property (pasture lands) fell to the share of Ramaswami. At this time Ramaswami had a son living, Venkataswami, who died 7 or 8 years after. This Venkataswami died intestate leaving behind him his widow the 1st defendant in the case. Ramaswami had besides the son, Venkataswami, a daughter by name Akkamma. Akkammas sons are the plaintiffs, China Kondayya and the 2nd Defendant, Ravi Kondayya besides a daughter. It is stated that in 1942 Ramaswami executed a settlement deed giving away certain properties in equal moities to his daughter, Akkamma and to his daughter-in-law, Lakshmma the 1st defendant.It would appear that soon after this 1st defendant viz., Lakshmma, the widow of the pre-deceased son of Ramaswami, filed a suit being O.S. No. 100 of 1944 on the file of the District Munsiffs Court, Kanigiri for partition and separate possession of a half-share both on the basis of the settlement deed referred to above as well as under Act XVIII of 1937. This suit was compromised and the preliminary decree was passed, by which properties covered by the settlement deed were divided into three shares amongst Akkamma (Ramaswamis daughter) the 1st defendant and Ramaswami.Ramaswami therefore became entitled to a l/3rd in the properties covered by the settlement deed by reason of the compromise effected in O. S. No. 100/44. Akkamma died some time after. Ramaswami filed an application before the District Munsiff, Kanigiri for a final decree pursuant to the preliminary decree passed in O. S. No. 100/44. This was I. A. 1168/48. When the proceedings were pending before the Munsifs Court, Ramaswami died on 14/11/1949.The 1st defendant Lakshamma claimed to be entitled to the suit properties as the heir of of Ramaswami by virtue of Act XVIII of 1937 read with the amending Act of 1946. It is stated that Ramaswami just on the day he expired, during the early hours of the morning (for he died late in the day), adopted his daughters son, China Kondayya. It is this adopted son who has filed the present suit.The suit for a declaration that he is the adopted son of the late Ramaswami and as such entitled to the properties left by Ramaswami absolutely, and for an injunction restraining Lakshmma, the widow of the pre-deceased son of Ramaswami from interfering with the peaceful possession and enjoyment of certain items of property in the plaint schedule and also for a declaration that the plaintiff and the 2nd defendant, the grandsons of Ramaswami by his daughter, are the nearest heirs to the estate of Ramaswami and as such are absolutely entitled to the same.Ramaswamis daughter-in-law, Lakshmma is the contesting defendant. The 2nd defendant, that is to say, the natural brother of the plaintiff remained ex parte. The contesting defendant denied the plaintiffs adoption and asserted that the properties were the self-acquisitions of her father-in-law, Ramaswami. She contended that by virtue of Act XVIII of 1937, she was entitled to the suit properties.

(2.) The trial court raised two important issues, firstly as to whether the suit properties were the separate properties of Ramaswami and secondly, whether the plaintiff was his adopted son. Art issue in the alternative also was raised to say that if the plaintiff was not the adopted son, whether the plaintiff and the 2nd defendant were the nearest reversioners to the estate of Ramaswami. The trial court held that the properties were the separate properties of Ramaswami within the meaning of Section 3(1) of Act XVIII of 1937 and therefore the 1st defendant was entitled to he properly. The question of adoption was not pressed.In the view that the trial court took about the nature of the properties, it held that the 1st defendant was the nearest reveisioner to the estate of the late Ramaswami. In the result the suit was dismissed with costs. On appeal the District Judge reversed the findings of the trial court both on the question as to whether the properties were the separate properties of Ramaswami and whether the 1st defendant was the nearest reversioner to his estate. The court allowed the appeal and decreed the plaintiffs suit declaring the plaintiff and the 2nd defendant to be the nearest reversioners and to be entitled to the plaint schedule properties, A. B. C. and D.

(3.) The matter was taken up in second appeal before this Court and the learned Judge Ansari J., concurred with the judgment of the lower appellate court and dismissed the appeal and confirmed the decree of the lower appellate court: