KUNDRAPU NARASIMHA NAIDU Vs. KUNDRAPU KONDADU

JUDGEMENT

(1.) This Letters Patent Appeal arises from the judgment of a learned Single Judge of this Court in A.S. No. 193 of 1978 dismissing the appeal preferred by the appellants who are defendants 4 and 9 to 24 in the suit. The first respondent is the plaintiff in the suit-O.S. No. 201/71 on the file of the Principal Subordinate Judge, Visakhapatnam. For the sake of convenience, the parties in this Letters Patent Appeal are referred to as they are arrayed in the suit.

(2.) The suit O.S. No. 201/71 was instituted in the Court of the Subordinate Judge, Visakhapatnam for partition of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiff. In the first instance, there were only four defendants in the suit. The first defendant was the adoptive father of the plaintiff. Defendants 2 and 3 are alienees from the first defendant with regard to certain plaint schedule properties. The 4th defendant claimed to be the adopted son of the first defendant. After the suit was instituted, the first defendant died and his wife was brought on record as 5th defendant. After the death of the 2nd defendant, defendants 6 to 8 were brought on record as his legal representatives. Subsequently, defendants 9 to 24 who are tenants of the plaint schedule property, got themselves impleaded. The case of the plaintiff was that when he was aged three years, defendants 1 and 5 adopted him and since his infanthood, he has been staying with them, his marriage was got celebrated by them and he was looking after the agricultural operations of the lands owned by the first defendant. Because of some misunderstandings between him and his adoptive father - the 1st defendant that cropped up in 1969, the latter started telling that the 4th defendant was adopted by him. - He, therefore, instituted the suit for partition and sepa rate possession. The first defendant died soon after the suit was instituted and after the 5th defendant was brought on record as his legal representatives, she filed a written statement supporting the case of the plaintiff. The alleged adopted son- 4th defendant, filed a written statement asserting that the first defendant adopted him in the year 1970 under a deed of adoption; Ex. B1 was the deed of adoption. On the basis of the pleadings, the trial Court framed in all, six issues including two additional issues and after considering the entire evidence brought on record, both oral and documentary 9 witnesses on behalf of the plaintiff and 14 witnesses on behalf of the defendants and 10 documents on behalf of the plaintiff and 31 documents on behalf of the defendants decreed the suit as prayed for. It was held by the trial Court that the adoption of the plaintiff by the 1st defendant was true and valid and that the plea of the 4th defendant that he was adopted by the first defendant was a concocted story putforward for the purpose of defeating the rights of the plaintiff. Ex.A4 dated 10-3-1969 agreement of sale executed jointly by the plaintiff and the first defendant in which they were described as father and son, Ex. A5- Voters' List of the year 1958, Ex. A6 Voters' List of the year 1970 showing the plaintiff as the son of the first defendant," Ex.A7 notice issued to the plaintiff and the defendants by the Central Excise Officials in connection with levy of tax on tobacco produced by them and Ex.A8 -certified copy of judgment in a criminal case in the year 1957 in which the plaintiff and the first defendant gave evidence, are some of the documents relied upon by the learned trial judge for the purpose of accepting the plea of the plain tiff that he was adopted by the first defendant. The oral evi dence in support of the plaintiff's case, besides his evidence as P.W.8, consisted of the evidence of his adoptive mother, the 5th defendant who figured as P.W.1, P.Ws. 2 and 3 who claimed to have witnessed the adoption of the plaintiff, P.Ws. 4 and 5 purchasers of certain lands from the first defendant, P.W.6 Sarpanch of the village and P.W. 7 Village Karanam.

(3.) On appeal, a learned single Judge of this Court while affirming the view taken by the trial Court as regards the genuineness of the plea of the plaintiff on the question of adoption, clarified the preliminary decree granted by the trial court by observing that it should be construed only as confirming symbolic possession to the plaintiff in respect of the half share of the plaint schedule properties since the lands are under the possession of the tenants - defendants 9 to 24 who cannot be evicted from the plaint schedule lands since their rights are protected by the provisions of Tenancy Act. The learned single Judge also held that the 5th defendant had not given her consent to the alleged adoption of the 4th defendant and as obtaining consent which is a mandatory requirement under Section 7 of the Hindu Adoptions and Maintenance Act, 1956 was not complied with, the alleged adoption is invalid. While stating so, the learned single Judge made a casual observation that "the adoption thereby is invalid though factually it has taken place."