MODEPALLI PEDA CHENGAMMA Vs. POLUR CBINNA CHENGAMMA

JUDGEMENT

(1.) This Second Appeal is directed against the Judgment and Decree of the learned Second Additional District Judge, Cuddapah in A. S. No. 73157 on his file. The facts necessary for the determina.tion of the questions in controversy may shortly be stated : One Tarigoppulu Nagaiah had four sons, Venkata'ah, Pitchinaidu, Nagaiah and Kangaiah. These four brothers became divided a long time back, hut Punchinaidu and Venkataiah lived together though there was no re-union as contemplated under the Hindu Law. Pitchicaidu bad by his wife Venkatasubbamma three daughters Pedda Chengamma (1st defendant) Chinna Chengamma (1st plaintiff) and Bojjamma (2nd plaintiff) but no sons. Venkata Subbamma had a brother Nagaiah (2nd defendant). Venkata Subbamma predeceased her husband, Pitcbinaidu and Pitchinaidu died in 1943 according to the defendants, but according to the plaintiff he died in 1947. The plaintiff's case is that they and the 1st defendant as the daughters of Pitchinaidu, are entitled to his properties in equal shares, and they filed a suit for partition and separate possession of the two thirds share belonging to them. The suit was resisted by the first defendant and the 2nd defendant was impleaded on 29-3-1966 on an objection raised by her. The contentions of Defendants Nos. 1 and 2 are as follows :- The 2nd defendant Nagaiah is the brother of Pitchinaidu's wife, Venkata Subbanoma. Even during his life-time, Pitchinaidu with the consent of his brother, Venkataiah and others brought the 2nd defendant into his family with a view to make his illatom son-in-law, a custom in the Karmma community to which the parties belong which is judicially recognised. The 2nd defendant was married to the Ist defendant, though after Pitchinaidu's death. The 2nd defendant was treated as illatom son-in-law, and he was managing the affairs of the family. As Pitchinaidu left no sons, he is in law entitled to bis entire estate Since he (D2) has been in possession and enjoyment of the properties for more than 20 yars, he has prescribed title to the same by adverse possession. The 2nd defendant was recognised as illatom son-in-law by Venkataiah as well as Venkata Subbamma. It was therefore prayed that the suit may be dismissed,

(2.) The learned District Munsif framed appropriate issues and on the evidence adduced found that the 2nd defendant is the illatom son-in-law of Pitchinaidu, that the custom of taking illatom son-in-law is in vogue in the Kamma community of Cuddapah district, that the 2nd defendant has been in possession of the suit properties for more than 12 years and prescribed a title thereto, that the plaintiffs are not entitled to claim partition, and that the suit also is time barred. On appeal preferred by the plaintiffs, the learned 2nd Additional District Judge, Cuddapah framed two points for consideration viz., (1) Whether the 2nd defendant was taken by Pitchinaidu as illatom son-in-law under an agreement that the 2nd defendant should be entitled to his entire estate, or a share therein, and (2) whether the 2nd defendant perfected his title to the suit properties by adverse possession for over the statutory period. He found both the points in the negative, and on those findings he allowed the appeal, set aside the decree of the trial court, and directed partition of the suit properties into three equal shares and allotment of two such shares to the plaintiffs. He also directed that the mesne profits be ascertained on a separate application. Aggrieved by this decision, Defendants Nos. 1 and 2 have preferred this appeal. Sri Bhujanga Rao, the learned counsel for the the appellants contended that the finding of the lower appellate court that the 2nd defendant was not taken as an illatom son-in-law is unsustainable, The arguments of the learned counsel is that it is not necessary to prove an agreement between the adopter and the adoptee for an illatom affiliation. I may at the outset mention that the concurrent finding of the courts below was that in the Kamma community the practice of taking illatom sons-in-law is well-established. It is also not disputed that once the other ingredients of a valid illatom are established the fact that the marriage of the adopter's daughter with the adoptee was celebrated after the death of the adopter would not affect its validity. The whole controversy, however, centered round the question whether or not there should be some agreement between the adopter and the adoptee with regard to the adoptee, agreeing to manage properties of the adopter and the adopter agreeing to give his entire estate or atleast a share therein to the adoptee. The argument of the learned Counsel for the appellants is that it is not a requirement of law that there should be such an agreement.

(3.) He contends that if the evidence establishes that the adopter took a particular boy as an illatom son-in-law, and in fact that boy is married to the daughter of the adopter whether it be during his life-time or after bis demise, he should in law be clothed with all the rights of an illatom son-in-law no matter whether or not there was an agreement to that effect.