DUGGINALLAKSHMANA RAO Vs. DUGGINA KAKSHMI KATAMMA

JUDGEMENT

(1.) A.S.No. 262 of 1969:- This appeal was filed by the plaintiff whose suit was dismissed by the learned Additional District Judge, Eluru. He filed the suit O.S.No. 41 of 1966 on 11-10-1965 for recovery of possession of two sets of immovable properties viz., Items 1 to 6 and Items 7 to 19 of the plaint A- Schedule from the 1st defendant. Defendants 2 to 6 are settlees of the properties from the 1st defendant.

(2.) The dispute has arisen under the following circumstances:- There was one Duggina Ratnam, who died in 1905 leaving his widow Lakshmikanthamma the 1st defendant herein. She adopted one Raghunadha Rao on 16-6-1933 as per law and in an ante-adoption agreement entered into between Lakshmikanthamma and Raghunadharaos natural father, she was given 7 acres of her husbands property with absolute rights leaving the rest of the property i.e., about 21 acres to the adopted son. Raghunadharao died on 24-4-1949 long after he became a major. Thereupon Lakshmikanthamma adopted on 8-8-1949 one Lakshmana Rao the present plaintiff, who is no other than the natural younger brother of the deceased Raghunadha Rao. Lakshmana Rao became a major in 1955, but he has chosen to file the suit in 1965 against his adoptive mother, claiming Items 1 to 6 of the plaint A - Schedule which were given to the adoptive mother under the ante-adoption agreement of 1933 and also Items 7 to 19 of the plaint A - Schedule which were all purchased by the adoptive mother Lakshmikanthamma in her own name during the years 1929 to 1946. So far as Items 1 to 6 are concerned, the plaintiffs case is that he is not bound by the ante-adoption agreement and that he is entitled to the properties by divesting the widow immediately on the adoption. As regards Items 7 to 19 his case is that the adoptive mother purchased these properties with the income of the joint family property and that they really constitute an accretion to the joint family. The suit was resisted by the 1st defendant on the ground that so far as Items 1 to 6 are concerned the ante-adoption agreement was ratified by Raghunadha Rao after he became a major and also by the plaintiff after he became a major and that in any event the suit is barred by adverse possession and limitation. As regards Items 7 to 19 she contended that the properties were purchased with her own money given by her father, that the plaintiff has no right to claim the same as an accretion to the joint family estate and that the suit is barred by time. The Court below up held the defence pleas and dismissed the suit. Aggrieved by the said judgment the plaintiff filed this appeal.

(3.) We will first take up items 1 to 6 of the plaint A-Schedule for consideration. The learned counsel for the appellant Shri. J.V.Suryanarayana Rao contended that the plaintiff, who is the second adopted son, is not bound by the ante-adoption agreement entered into at the time of the first adoption of Raghunadha Rao and that under law, as a result of the adoption, he has divested the widow of these properties. In support of this contention the learned counsel placed reliance upon Laxmibai v. Keshava Rao AIR 1941 Bom 193. In the said case the widow of one of the brothers in a joint family adopted a boy during her husbands lifetime. Her husband made a will authorising her to manage the properties on behalf of the adopted son and to enjoy half the income in case of estrangement between them. Subsequently a suit for partition was brought by a person who was subsequently adopted by the widow of another brother. It was held that the plaintiff is entitled to the share of his deceased father and that the arrangement made by the sole surviving coparcener under the will does not bind him. This is not really a case of an ante-adoption agreement. But nevertheless, the Court cited the observations of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar , ILR 50 Mad 508 = (AIR 1927 PC 139) Viz., that an ante-adoption agreement is an arrangement which merely regulates the rights of the adoptive mother vis-a-vis the adopted son and held that the second adopted son in the family is entitled to his share notwithstanding the previous arrangements made by the sole surviving coparcener. In any event that was a case where no absolute title was conferred upon the widow. We do not, therefore, derive any assistance from this decision. In ILR 50 Mad 508 = (AIR 1927 PC 139) it was ruled by the Privy Council that an arrangement between the adoptive mother and the adopted boy represented by his natural father making some provision for the adoptive mother by way of a life estate for the protection of her interests is sanctioned by custom and that it is valid provided it is fair and reasonable in the interests of both the parties. The learned counsel for the appellant laid considerable stress upon the following observation of the Privy Council in the said case viz., that the agreement is intended to regulate the rights of the adoptive mother and the adopted son. It was argued on the basis of this observation that the adoptive mother should hold the estate only so long as the particular adopted boy is alive and that it is not binding on anyone else after her death. We are unable to infer such a principle from his observation. In the context it merely means that the agreement should benefit only the widow and not a stranger. The principle enunciated in the above decision of the Privy Council was extended by the Madras High Court in Raju v. Nagammal, 56 Mad LJ 41 = (AIR 1928 Mad 1289) in which an ante-adoption agreement conferring absolute title on the adoptive mother with respect to a reasonable fraction of the entire estate, was held to be valid. it was held that after the death of the adoptive mother property given to her absolutely under the ante-adoption agreement would pass to her successors and not to the adopted son. It is now too late in the day to contend that an absolute estate cannot be created in favour of the adoptive mother under an ante-adoption agreement. The above decision of the Madras High Court has been followed subsequently in Madras and also in Andhra Pradesh (see Purnanandha Sastri v. Purnanandam, AIR 1961 Andh Pra 435)