KISHANGUNJ HYDERABAD Vs. CHINTALA VENKATA LAXMI

JUDGEMENT

(1.) The second defendant is the appellant.The plaintiff, first respondent herein filed a suit for declaration that she is the only heir, successor and owner of the suit schedule property - double storied building bearing Municipal No.15-2-314 and 315 situated at Kishangunj, Hyderabad. According to her she is the only legal heir entitled to succession of the said suit schedule property. The property originally belong to one Bodla Raghavulu. He died some time in 1932. His wife, Bodla Jejamma became the sole heir and was enjoying property. Raghavulu and Jejamma had one daughter by name Venkatamma, who pre-deceased Jejamma.Venkatamma's daughter Sulochana was married to first defendant/second respondent Kashinath and they had only daughter Chintala Venkatalaxmi who is the plaintiff. Sulochana also died leaving behind her the plaintiff. Kashinath married Danamma again and through her he got two sons and one daughter. Bodla Ravindranath is eldest son and he is arrayed as second defendant, who is appellant in the appeal. In a nutshell it is plaintiff's case that after death of Jejamma on 23.12.1977 first defendant Kashinath occupied the house forcibly and appropriated all the movables, gold, jewellery and valuables.When the plaintiff tried to take possession of the house and movables, the first defendant dodged the issue on one pretext or the other. The plaintiff issued Lawyer's notice dt.23.3.1981. The first defendant set up a false plea of adoption of the second defendant by late Jejamma and Will deed of Jejamma bequeathing suit schedule property in favour of her adopted son. Asserting that late Jejamma never adopted the second defendant and she never executed any will, she filed the suit that she is sole heir and owner of the suit schedule property. Defendants 1 and 2 contested the suit and defendants 3 to 6 who are the tenants in the suit schedule property remained ex parte.

(2.) It is the case of the first defendant that Jejamma was deeply religious minded lady and she wanted male issue in her family to avoid Punnamanarakam. It is she who had persuaded the first defendant to marry second time. Since birth of the second defendant Jejamma was very fond of him and treated second defendant as her own son with an intention to adopt. At the time of marriage of plaintiff in April 1968, late Jejamma executed a sale deed in favour of the plaintiff for a consideration of Rs.4,000/- in respect of the building bearing Nos.15-2-316 to 319 situated at Kishangunj, Hyderabad which is adjacent to the suit building. No consideration was in fact paid. But the first defendant got the document executed in favour of Venkatalaxmi out of affection for the issues of both wives. The plaintiff has already got one building of late Jejamma which is of similar value to the suit property. Late Jejamma lived with the family members of the first defendant in the suit house. She adopted second defendant on 11.5.1977 and also performed thread ceremony as per Hindu rites. The plaintiff and her husband and other relatives were present.Late Jejamma executed Will on 12.5.1977 with sound and disposing state of mind bequeathing all her properties to second defendant. She died in the suit house while living with the defendants on 23.12.1977.The second defendant as adopted son performed funeral rites of late Jejamma. Late Jejamma did not leave any gold or silver articles as the same were stolen in 1974. In spite of complaint to Police, they could not be recovered. The second defendant as adopted son of late Jejamma and also by virtue of the Will dt.12.5.1977 inherited all the properties. The plaintiff is not entitled to any relief of declaration and for recovery of possession and that the suit is barred by limitation. The written statement filed by the second defendant/appellant herein is to the same effect and it is not necessary again to summarise the same. The trial Court has settled the following issues stemming from the pleadings.

(3.) The plaintiff examined P.Ws.1 to 3 and marked Exs.A.1 to A.13.The defendants in rebuttal examined D.Ws.1 to 7 and marked Exs.B.1 to B.5. Exs.B.1 to B.4 are group photographs purportedly marked by defendant Nos.1 and 2 to prove adoption and Ex.B.5, dt.12.5.1977 is Will deed executed by late Jejamma. After appreciation of oral and documentary evidence the trial Court recorded a finding on issue No.1 to the effect that the plaintiff is heir of late Bodla Jejamma as her great-grand-daughter and is entitled to suit schedule property. On issue Nos.2 and 3 it was held that adoption is not proved and execution of the Will is surrounded by suspicious circumstances. Sri T. Veerabhadraiah, learned counsel for the appellant/second defendant made submissions to the following effect. After enactment of Hindu Adoptions and Maintenance Act, 1956 (for short, the Adoptions Act) the factum of giving and taking boy in adoption is relevant and needs to be proved. Exs.B.1 to B.4 are not mere group photographs and they evidenced the first defendant and his wife giving the appellant in adoption and Jejamma taking the boy in adoption. Therefore, the adoption is validly proved. The observations made by the trial Court that datta homam as pleaded is not proved is erroneous.Under law datta homam is not mandatory and it need not be proved. In the absence of any evidence of datta homam, it does not in any manner dilute the evidence of adoption as seen from Exs.B.1 to B.4. The plaintiff is aware and she was present during adoption ceremony, but the suit was filed on 20.1.1982 and therefore the same is barred by limitation as per Articles 57 and 58 of the schedule to Limitation Act, 1963. The plaintiff without asking for declaration under Section 34 of the Specific Relief Act, cannot seek declaration that she is legal heir of Jejamma. Execution of the Will Ex.B.5 by late Jejamma was validly proved in accordance with law and there are no suspicious circumstances surrounding the execution of the Will. The second defendant as adopted son is entitled to succeed to the property of Jejamma, but by way of abundant caution Jejamma executed the Will and the trial Court was wrong in coming to the conclusion that the same is vitiated by suspicious circumstances.He placed reliance on the judgments of SASHI KUMAR BANERJEE v. SUBODH KUMAR1, RAMCHANDRA RAMBUX v. CHAMPABAI2, SUSHILA DEVI v. KRISHNA KUMAR3, SURENDRA PAL v. SARASWATI4, BENI CHAND v. KAMLA KUNWAR5 JASWANT KAUR v. AMRIT KAUR6 MADHUSUDAN DAS v. NARAYANI BAI7, SURYADEVARA PULLAYYA v. SURYADEVARA SATYANARAYANA8. The learned counsel however does not dispute that as per Section 8 read with Section 2(f) and schedule 2 and Section 15(1)(B) of the Hindu Succession Act, 1956 the plaintiff is the legal heir of husband of Jejamma. Sri G. Dhananjaya, learned counsel for first respondent/plaintiff submits that the plaintiff alone is entitled to succeed to the property as only legal heir of Jejamma. He placed reliance on various provisions of the Hindu Succession Act. Nextly, he would contend that adoption alleged by the appellant and the second defendant is non-existent and therefore there was no necessity for the plaintiff to seek declaration that adoption never took place. The suit is therefore not barred by Article 57 of the Limitation Act. The right of the plaintiff was not denied and cause of action arose on 7.4.1982 when reply notice was issued by the appellant/second defendant. Article 58 of the Limitation Act is also therefore not applicable. In the absence of any pleading or evidence that the cause of action arose on 23.12.1977, to act as a bar to the suit, the Will, Ex.B.5, is not validly proved and evidence of D.Ws.2 and 3 creates a doubt whether the Will was executed on 12.5.1977 as alleged. He also submits that there are many suspicious circumstances surrounding execution of the Will and as the father of the appellant took active role in execution of the Will by Jejamma the burden lies on defendants 1 and 2 to remove all the suspicious circumstances. But, they failed to remove all the suspicious circumstances. The learned counsel submits that the second defendant was not adopted by Jejamma. When they could allegedly take photographs Exs.B.1 to B.4 showing performance of Upanayanam of the second defendant, nothing prevented the defendants to take photographs of data homam. The absence of any photograph of data homam improbabilises the factum of adoption. Exs.B.1 to B.3 are not taken at same place and they were taken elsewhere.There is no evidence that the first defendant gave his son in adoption to Jejamma and that she accepted second defendant as her son. He also submits that the conduct of the parties especially by defendants 1 and 2, namely that property was not mutated in the name of second defendant after adoption or Ex.B.5 Will and also the fact that second defendant was not described as son of Bodla Raghavulu even after adoption would show that the adoption is an improbability.