KARNAM NAGABHUSHANA RAO Vs. KARNAM GOWRAMMA

JUDGEMENT

(1.) These two Appeals, S. A. No. 554 of 1962 preferred by the plaintiff and C.M.A. No. 20 of 1962 preferred by defendants 3 and 9 are from the judgment and decree dated 18th November, 1961 passed by the Additional District Judge, Anantapur in Appeal No. 214 of 1960 whereby he upheld the order of dismissal of the suit to the extent of the plaint schedule property, but set aside the order of the Subordinate Judge, Anantapur in relation to B Schedule property and remanded the suit in respect thereof for further trial and fresh disposal. The suit A and B schedule properties originally belonged to Karnam Appaurao. It is not known whether they were his self-acquisitions or had come into his possession from his forefathers. It is, however, clear that if these properties were ancestral, Apparao was in possession thereof as the sole surviving coparcener till his death which took place on 30th March, 1951. The' case, as found by the trial Court, which was not seriously contested in appeal, is that Appaurao demised the said suit properties under a will dated the 28th March, 1951, which was his last testament, in favour of his minor wife, the 1st defendant, authorising her at the same time to take a boy in adoption for him to continue the family line and succeed to the office of karnamship of Jagarajapalli; that she accordingly on 12th August, 1954 took the plaintiff in adoption with due formalities and executed a deed in his favour on 24th August, 1953 stating therein at the same time that the adopted boy became entitled to all the rights in the property which Appaurao died possessed. By the time this adoption took place, the guardian of the 1st defendant, who happens to be her father, had alienated the A Schedule properties to defendants 2 to 8 and has later obtained from the 1st defendant a relinquishment deed in respect of the B schedule property on 14th August, 1953 in favour of defendant 9 for a sum of Rs. 2,500.

(2.) The 9th defendant, on the same day, sold items 1 and 2 of the B Schedule property to defendants 3 and 8 and paid the sale preceeds thereof in a sum of Rs. 2,500 to the 1st defendant which formed the consideration for the relinquishment deed. He retained the other items Nos. 3 to 10 in his possession. The plaintiff therefore brought the present action for recovery of possession of the said A and B Schedule properties questioning the alienation of A Schedule property as being invalid having been made without legal necessity and claiming that the relinquishment deed in relation to the B Schedule property was void as the ist defendant was at the time but a minor.

(3.) Defendants 1 and 2 remained ex parte. Defendants 3 to 9 resisted the claim of the plaintiff. It was averred that the sale of A Schedule property was for legal necessity and for binding purposes, that the 1st defendant was a major at the time she executed the relinquishment deed, and received a sum of Rs. 2,500. The defendantsdenied the truth and validity of the adoption of the plaintiff. The trial Court found that both the will and the adoption Were true and valid, but it dismissed the suit on the ground that what the widow got under the will was absolute right in the devised properties, which could not be affected by the adoption of the plaintiff and that by the time of adoption, A Schedule properties were alienated by the natural guardian with the result that the alienees got title thereto and that the plaintiffs cannot impugn those alienations, nor even the relinquishment deed during her life time. He may, if so advised, file a suit for recovery of the property alienated to 9th defendant after the life-time of ist defendant. In the result, the suit of the plaintiff was dismissed without costs. The appellate Court noticed that the defendants and a did not choose to contest the suit and remained ex parte in the trial Court and that certain alienations were indeed made by the father of the 1st defendant in his individual capacity and not expressly as guardian of the minor ; but it did not go into the question of legality of such alienations as it was of the opinion that such transactions being voidable could be challenged only by the minor, that this right of the minor is incapable of being transferred and, that the plaintiff who got under the adoption deed a mere right to sue cannot in law challenge the alienations of A Schedule property. It, therefore, upheld the order of dismissal passed by the trial Court to that extent. As regards the relinquishment deed the learned Additional District Judge was of the view that inasmuch as the widow conveyed her interest in her husband's estate to her adopted son under the adoption deed executed by her, the plaintiff got rights in the devised property to the extent the widow still had at the time of adoption. If, therefore, the relinquishment deed was void being executed by the minor, it was open to the adopted son to claim the property covered by that deed. In this view of the matter the learned Judge proceeded to consider whether the 1st defendant was a minor at the time. He came to the conclusion that the trial Court did not give due Weight to the evidence in that behalf which consisted of horoscope, entry in the birth register and the oral testimony of some of the witnesses on the simple ground that the plaintiff had failed in the trial Court to produce the school record showing the age of the 1st defendant which, in the opinion of the trial Court, warranted an adverse inference against the plaintiff. As the entry in the school register Was produced in the appellate Court, the appellate Court thought that this piece of evidence should be brought on record in the interests of justice and that further evidence in relation thereto must be permitted to be adduced. On that ground, the learned Judge set aside the finding of the learned Subordinate Judge and directed that the trial Court shall receive further evidence on the question of the age of the 1st defendant with reference to the document produced in appeal and dispose of the matter according to law. Against this order of remand the defendants 3 to 9 have come up in appeal. The plaintiff has preferred a second appeal in relation to the finding about his right to A Schedule propfties.