MAKINENI NAGAYYA Vs. MAKINENI BAPAMMA

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises in execution proceedings relating to a decree passed on compromise in O.S. No. 300 of 1939 on the file of the District Munsif's Court at Guntur. We shall refer to the parties by the role which they had in the suit. Defendants are the appellants.

(2.) The facts, which have given rise to the present appeal may be briefly stated. The immovable properties, which are the subject-matter of the present appeal, belonged to one Krishnayya. His wife, Bapamma, is the plaintiff. Krishnayya executed a Deed of Settlement on 12th April, 1939, authorising his wife to take, after his death, in adoption one of the sons of his brother Nagayya (1st defendant) and provided that his properties should be taken in equal shares by the widow and the adopted son, if they could not live together. Krishnayya died. Thereafter, disputes arose between his widow, the plaintiff, and Krishnayya's brother, the ist defendant. The latter alleged that the widow had, in fact, taken in adoption one of his sons Venkateswarlu (2nd defendant) and claimed for the adopted son a half of the properties. The widow Bapamma denied the adoption. A suit became inevitable and the lady filed O.S. No. 300 of 1939 in the Court of the District Munsif, Guntur, for a permanent injunction restraining the defendants from interfering with her possession and enjoyment of the properties. Ultimately a compromise was effected on 5th December, 1942, at the instance of friends and relations. It is the decree passed on the compromise that has been the subject-matter of much litigation culminating in the present appeal.

(3.) We are concerned only with two of the provisions of the compromise decree : (1) The plaintiff shall enjoy one-half of the property mentioned in the Settlement deed (plaint Schedules I and II (b)) with absolute rights of sale, gift, etc., and the defendants shall not raise any objection at any time in future. (2) The plaintiff shall now take the second defendant as the adopted son of her husband and he shall have a right to and enjoy certain specified properties." The two provisions were not expressly made interdependent and that circumstance obviously enabled Bapamma to desist from taking the boy in adoption and treat the provision in clause (1) in her favour as absolute and unconditional. She filed an Execution Petition on 19th July, 1943, asking for delivery of possession of the properties decreed in her favour reserving the right to seek possession of the remaining properties in future proceedings. The petition was dismissed on the ground that she failed to fulfil the condition of taking Venkateswarlu (2nd defendant) in adoption. An appeal was preferred by Bapamma. It was also dismissed. She was then advised to file a regular Suit O.S. No. 5 of 1946 in the Court of the Subordinate Judge, Guntur, jointly with her uncle as the second plaintiff as he had taken a conveyance from the lady. The suit was dismissed. An appeal to the High Court also failed on the ground inter alia that the only course open to the plaintiffs was to enforce their rights under the compromise decree in execution proceedings and that no separate suit could lie. Bapamma had, perforce, to reconcile herself to the decision of the High Court, realised the futility of avoiding the adoption and finally made up her mind to take the boy. She made oral requests to the first defendant, the father of the boy and ultimately issued a notice on 19th January, 1951 (Exhibit A-1) stating unequivocally that she was ready and willing to take the boy in adoption. She even fixed a Muhurtham on 19th February, 1951, for the purpose and indicated the place, her own house, in Abineniguntapalem where the defendants too reside. It was now the turn of the defendants to adopt evasive tactics and the first defendant sent a reply, Exhibit 6-7, on 12th February, 1951, expressing inability to give any definite reply as talks of compromise were going on between his lawyer and others. Nevertheless, Bapamma went personally to the 1st defendant's house along with one Tirupatiah (P.W. 2) and made a personal appeal to him to give the boy in adoption. The first defendant refused. Bapamma, soon after, filed E. P. No. 251 of 1951 referring to the circumstances which transpired and praying that the Court might afford the necessary facilities for her performing the obligation of taking the boy in adoption by appointing a Commissioner, if necessary, and fixing a date for the ceremony. She prayed, in addition, for the delivery of possession of the properties vouchsafed under the compromise decree. This was on 27th February, 1951.