J V VIJAYABHASKAR Vs. J KESHAVA RAO DIED

JUDGEMENT

(1.) This appeal and cross-objections are from the judgment and decree in O.S.No. 2 of 1980 on the file of the Sub-Court, Bhimavaram. The plaintiff is the appellant. Claiming himself to be the adopted son of the first defendant - Jupudi Keshava Rao - the plaintiff asked for partition and separate possession of1/4th share in the plaint schedule properties. The second defendant is the minor son of the plaiantiff. The parties belong to Vysya Community.

(2.) In brief, the case set up by the plaintiff was that on the request of the first defendant and his wife, Sesharatnam, his natural parents agreed to give him in adoption and from 1957 onwards, he has been living with the first defendant and his wife as their adopted son. The actual adoption took place in the presence of friends and relatives on 24-3-1962 in accordance with Hindu custom and tradition. Before the adoption, he was known as Gudivada Venkatarathnam and his name was changed to Jupudi Venkata Vijaya Bhaskar at the time of the adoption ceremony. His wife, Ammaji alias Hemasundari, the daughter of one of the brothers of the first defendant's wife, Sesharathnam, was brought up by the first defendant after her father's death and they performed her marriage with the plaintiff on the very same day of adoption i.e., 24-3-1962 as per Hindu custom and rites. He and the first defendant have been enjoying and paying taxes treating the plaint schedule properties as joint family properties. When Sesharathnam, the first defendant's wife, fell ill, one Damayanthi, daughter of one of her (Sesharathnam's) brothers came to live with them attending on the ailing Sesharathnam. After the death of Sesharathnam on 9-6-1966, the first defendant developed illicit intimacy with the said Damayanthi and unable to tolerate that, he left the family house. When he demanded the first defendant to render account in respect of the plaint schedule properties, the latter refused and, therefore, he laid the suit. The suit was instituted originally in the Court of the Subordinate Judge, Narasapur as O.S.No. 36 of 1969 and later, on transfer to the Sub Court, Bhimavaram, it was numbered as O.S.No. 2 of 1980.

(3.) Resisting the suit, the first defendant admitted in the written statement that the plaintiff was fostered by him and his wife but the proposed adoption did not take place on 24-3-1962 and the same was cancelled one day before that on the advice of astrologers. Alternatively, he pleaded that even if the adoption was true, it was invalid since by the date of adoption, the plaintiff was aged more than 15 years and so, the same is hit by Section 10 of the Hindu Adoptions and maintenance Act (for short "the Act"). He admitted having fostered Ammaji alias Hemasundari and getting her married subsequently to the plaintiff. He pleaded specifically that as there was a petition for maintenance filed by a woman by name Puvvala Vajram, with whom he had extra-marital relations prior to 1941, and apprehending that she might file a suit for maintenance and obtain a charge on the properties, he executed a nominal settlement deed on 16-5-1941, (Ex.B-48) in favour of his wife - Jupudi Sesharathnam -and the said document was never intended to be acted upon nor was it ever acted upon. His wife, Sesharathnam, never had any rights in respect of the properties covered by the settlement deed and whenever required, he used to sell the properties and his wife, Sesharathnam, used to execute documents but the consideration always was received by him. However, in order to clear the cloud over his title, he got his wife, Sesharathnam, execute three settlement deeds - Exs.B-24 dt. 18-12-1952, Ex.B-45, dt. 17-11-1956 and Ex.B-44 dt. 12-9-1957 -in his favour. Even if the settlement deed, Ex.B-48, is held to be valid and binding, by virtue of the three settlement deeds, the properties became his separate and self acquired properties. One important plea raised by him is that at the time of contemplation of adoption of the plaintiff, an ante-adoption agreement, Ex.B-16 was executed on 14-3-1962, "whereunder, the plaintiff agreed not to claim any share in the properties" set out in the schedule attached to that document. Therefore, in respect of the properties covered by the ante-adoption agreement, Ex.B-16, the plaintiff had no manner of right or claim. The plaintiff, he alleged, in consultation with the auditor, was submitting the income-tax and wealth tax returns as if they constituted Hindu undivided properties and that was done with a view to obtaining higher exemption benefit. He signed the tax returns without going through them or understanding their legal import. Even otherwise, the properties were held by him as sole surviving coparcener and, therefore, they were subjected to tax as Hindu undivided family income. Emphatically denying the allegation that he developed illicit intimacy with Damayanthi, he asserted that he married her on 16-2-1968 after the death of his first wife, Sesharathnam.