VENKANNA Vs. VENKAMMA

JUDGEMENT

(1.) This appeal directed against the judgment and decree in O.S. No. 8/71 on the file of the Subordinate Judge, Tanuku is by the plaintiff therein. That suit was tried along with another suit O.S. No, 160/69. The plaintiff claims to be the adopted son of one Dasari Subbanna having been taken in adoption when he was about six months old. Dasari Subbanna's first wife is one Dasari Subbamma and the second wife is one Dasari Venkamma (1st defendant herein). The 2nd defendant is the daughter of Dasari Subbanna by his first wife. Dasari Subbamma died in the year 1955. Her husband Dasari Subbanna executed.a registered document Ex. A-1 dated 1-9-1958 purporting to be an adoption deed giving his properties to the plaintiff. Dasari Subbanna died on 11-12-1958. After his death disputes arose between plaintiff and the defendants and consequently the plaintiff left the adoptive father's house and went 'and resided with bis natural parents. The plaintiff's natural father as his next friend O.S. No. 26/1962 OH the file of the Subordinate Judge, Eloru for a declaration of adoption and for recovery of properties both on the strength of the adoption and the registered document dated 1-9-1958, marked Ex. A-l. That suit was dismissed by the trial Court upon the finding (hat the plaintiff was not the adopted son of Subbanna. Even the appeal prefer against that judgment was dismissed confirming the findings of the trial Court. The present suit is instituted by the plaintiff after attaining majority inter alia pleading that his natural father who acted as his guardian and next friend, acted with gross negligence in not placing all the oral and documentary evidence in support of his case of adoption and in not taking the plea that even if the adption were not to be true the plaintiff was entitled to the plaint A, B and C schedule properties as a person designate under the registered document Ex. A-l dated 1-9-1958. According to him under Ex. A-l he is entitled to the property whether it is construed as a settlement deed for a will even after the adoption fails. The findings in the earlier suit O. S, Ne. 26/1962 do not constitute resjudicata. It is his further case that item 18 of plaint A schedule, properties belongs exclusively to bis adoptive father Subbanna but was purchased benami in the name of the 2nd defendant. So also items 25 and 26 though purchased in the name of 1st defendant were purchased from out of the joint family funds and as such belong to him exclusively under Ex. A-A1. Even items 27,28 and 29 purchased by the 1st defendent after the death of Subbanna were purchased with the joint family funds. Hence the plaintiff was entitled to the said items. A few days before the death of Dasarti Subbanna, a settlement deed marked Ex. B-1 dated 9-12-1958 was executed under which items 15-A and 15-B of the A schedule properties were gifted to the 2nd defendant. Bui on the date of the execution and even for some time prior to that Dasari Subbanna was not in a sound and disposing state of mind and consequently the said document is not valid and enforceable. The 2nd defendant does not get any right to the properties. Both the Island 2nd defendants who filed separate written statements primarily pleaded that the findings in the earlier suit O. S. No. 26/1962 constituted res-judlcata that the plaintiff's natural father was not at all guilty of negligence muchless was he guilty of gross negligence in conducting the said suit. They denied that the plaintiff was the adopted son of late Dasari Subbanna and that any right accrued to him under Ex. A-1. It was. also urged that Ex. A-l was executed at the time when Dasari Subbanna was in a very weak mental condition and as such it was not valid. The 1st defendant also pleaded that Ex. B-1 settlement deed in favour of the 2nd defendant was not true and valid and that it was brought into existence by the 2nd defendant when the 2nd defendant was not in a sound and disposing state of mind. As regards the plaint schedule properties it was pleaded that except items 25, 26, 2? 28 and 29 of A schedule properties all other items were the self acquired properties of late Dasari Subbanna and that item 18 was purchased by Dasari Subbanna in-the name of the 2nd defendant benami. Item 28 was sold by the 1st defendant to the 3rd defendant. and the 3rd defendant in turn sold it to the 13th defendant, it was pleaded that in any event Ex. A-l was not an adoption deed and that it did not confer any right on the plaintiff dehors the adoption. The 2nd defendant denied the right of the plaintif in similar terms as the 1st dclendani and claimed that item 18 was her stridhana property and that items 27 and 28 were acquired by the 1st defendant after Dasari subbanna's death and that Ex. B-1 settlement deed was true and valid. As regards Ex. A-1 her stand is identical with mat of the 1st deltnoant. The 3rd dcienaant who is the purchaser of item 28 of A schedule properly pleaded that the 1st defendant was .the true owner of the said property. The same was alienated by him in favour of the 13th defendant and that the plainunts present suit was barred by res-judicata.

(2.) The trial Court on an appreciation of the evidence on record found that the plaintiff's father who was his next friend in the previous suit O. S. No. 26/1962 was not guilty ot negligence and therefore the findings in the said suit operated as res-judlcata against the plaintiff m the present suit. It also held that the plea that the plaintiff was entitled to tne suit properties as a person designata even it his adoption is not held to be true was untenable, tor, that plea was available to the plaintiff m the previous suit and was not taken. The other suit that was tried along with the piesent suit was by the 1st defendant in O. S. No. 8/71 i. e. the second wite ot late Dasai Subbanna against the 2nd defendant herein that is the daughter, of late Dasari Subbanna by his first wite. That was a suit tor partition on the fooung that they alone are the heirs of late Dasari Subbanna and consequently entitled to a half share. In view of the above findings reached by it, the trial court while passing a preliminary decree tor partition dividing the plaint schedule properties into two equal shares and allotting one such share to Dasari Venkamma the plaintiff m O. S. No. 16U/69 (1st defendant m O. S. No. 8/71) dismissed the plaintiff-appellant's suit O. S. No. 8/71. In this appeal, the principal .contention of Mr. C. N. Babu, the learned counsel for the plaintiff-appellant is that the plaintiff as the validly adopted son of late Dasari Subbanna and that the natural father of the plaintiff who acted as bis next friend was guilty of gross negligence in conducting the said suit in as much as he failed to adduce all the available oral and documentary evidence and also failed to take a plea which he was entitled to the suit properties as personal designate even if his adoption was not true and the findings in the previous suit did not constitute res judicata.

(3.) Admittedly the plaintiff had filed the previous suit O. S. No. 26/62 on the file of the Subordinate Judge, Eluru for declaration of adoption and for tecovery of the very same plaint schedule properties. In that suit oral and documentary evidence was adduced to prove the plaintiffs case of adoption. The present Ex. A-l registered document dated 1 9-1958 was also filed therein to prove the adoption and in particular to establish that even Dasari Subbanna bad expressly acknowledged under that ducument that the plaintiff was his adopted son. It was further pleaded that under the Hindu Adoptions and Maintenance Act when an adoption deed is executed the adoption should be presumed to be true and valid and the burden of proving to the contrary lay on the person disputing such adoption, in the . previous suit the question of adoption was squarely in issue and Ex.. A 1 was also placed betore the Court tor cousiderauon ot its effect on the claim of the plaintiff to the declaration ol adoption as well as his claim to recover the plainx schedule properties. In the present suit too the sa*u,e issues are to be decided. Unless, the findings in the previous suit are shown to be not binding on the plaintiff-appellant tor one reason or other the said findings would certainly operate as res-judicata. Mr. C N. Babu has rigntly contended that those findings cannot be field to be binding on the plaintiff who has now attained majority and filed the present suit it the next friend of the plaintiff who had instituted the previous suit during his minority is shown to have acted with gross negligence. Mr. Babu contends that though sec. 44 of the Indian EVIDENCE ACT, 1872 speaks of only fraud or collusion as the grounds for avoidiig any judgment or decree which is relevant under sees. 40, 41 and