MANIKYA NAYANIM VARU Vs. LAKSHMINARASIMHA SASTRULU

JUDGEMENT

(1.) This appeal has been preferred by defendants 3 to 7 and arises out of a suit brought by the plaintiff (first respondent) for a declaratory relief in the Court of the Subordinate Judge of Chittoor. The facts of the case have been set out in the judgment of the Subordinate Judge and a brief reference to them is necessary in order to understand the nature of the dispute in this case. Palayagar Chengama Nayanim Vara (No. 1) was in possession of 62 villages including the three villages mentioned in the plaint schedule B as usufructuary mortgagee under two mortgage deeds, dated the 17 May, 1890 and executed by the Rajah of Karvetnagar. He died in or about 1893 leaving behind him four sons, namely, Vijayappa Nayanim Varu, Govindasami Nayanim Vara and defendants 3 and 4. By means of an award, a partition was effected among these four sons, whereby 14 out of the 62 villages including the three villages mentioned in Schedule B were allotted to the share of Govindasami Nayanim Vara who died in 1897. His widow was Venkatamma. His elder brother Vijayappa Nayanim Varu had two sons, namely Chengama Naidu (No. 2) and the present second defendant. Defendants 5 to 7 are the sons of the 4 defendant. According to the plaintiff's case, Chengama Naidu (No. 2) was the adopted son of Govindasami Nayanim Varu. The present first defendant is the minor son of Chengama Naidu (No. 2). Subsequent to the death of Govindasami Nayanim Vara, his estate became a veritable apple of discord and was the subject-matter of several suits in a long series of litigation. Venkatamma denied the truth and validity of the adoption of Chengama Naidu (No. 2) which was set up by his natural father Vijayappa. The disputes between them were referred to the arbitration of one Krishnamachariar, a Pleader of Tirupati, who passed an award on the 5 January, 1898 (Ex. E). Curiously enough, this arbitrator purporting to act on a consent statement given by the parties effected a sort of division between them without deciding the question of adoption one way or the other. He divided the properties between Chengama Naidu (No. 2) and the widow Venkatamma in the proportion of 3: 1. It is under. this award that Venkatamma got the three villages mentioned in Sch. B with absolute rights, whereas, the properties allotted to Chengama Naidu (No. 2) were subject to a defeasance clause to the effect, that, if Venkatamma should beget a male child, he should be divested of the properties given to him under the award. The dispute did not end with this award, but it proved to be the beginning of further disputes. Venkatamma filed O.S. No. 21 of 1900 on the file of the Sub-Court of Chittoor for a declaration that the award is void and that the alleged adoption is neither true in fact nor valid in law. To this suit Vijayappa and his son Chengama Naidu (No. 2) the alleged adopted son and also the present defendants 3 and 4 were parties. (Ex. III.) In the written statement filed by defendants 3 and 4 they denied the truth and the validity of the alleged adoption, questioned the award as being a fraudulent one and also set up an oral will by the late Govindasami Nayanim Varu, whereby he bequeathed all his properties in their favour to be divided equally between them. (Ex. IV.) That suit ended in a rasi and was dismissed. Subsequently, the present 4 defendant filed O.S. No. 16 of 1905 in the District Court of North Arcot for the recovery of Govindasami's estate on the strength of the nuncupative will alleged to have been left by him. He also sought for a declaration that the alleged adoption of Chengama Naidu (No. 2) is neither true nor valid. Vijayappa and the alleged adopted son were defendants 1 and 2 in that suit. The present 3 defendant was also the 3 defendant, and Venkatamma was the 4 defendant and her brother was the 5 defendant in that suit. It would appear that a decree was passed in that suit declaring the adoption of Chengama null and void, but subsequently the decree was set aside and the suit was restored to file. It was numbered as O.S. No. 26 of 1908 on the file of the District Court of North Arcot. Eventually, it ended in a razinama decree on the 31 July, 1909 (Exs. VII and VIII), The compromise was between the plaintiff in that suit and defendants 1, 2 and 3 therein. Venkatamma and her brother were no parties to that compromise and they were exonerated from the suit. Under this razinama, one of the 14 villages above referred to, namely, Nandimangalam, was allotted to Chengama Naidu (No. 2) who was the 2nd defendant therein with the burden of paying one-third of the debts due by the deceased Govindasami and the other properties should be taken by the plaintiff and the 3 defendant therein, (the present defendants 3 and 4) in equal shares with the corresponding liability of paying two-thirds share of the debts clue by the deceased. This razinama was entered into without deciding the status of Chengama Naidu in either way but leaving that question completely open. As Venkatamma was exonerated from the suit with costs she was not bound by this compromise. The right which she acquired to the three villages as per the award referred to above remained unaffected by the razinama decree which was passed on the 31 of July, 1909. There is no doubt that defendants 3 and 4 who survived the widow Venkatamma would be entitled to the estate of Govindasami as the nearest reversioners, if the alleged adoption of Chengama Naidu (No. 2) be not true and valid. It is pretty clear that, though the question relating to this adoption was raised in ever so many proceedings, somehow the decision of this question was shelved and some arrangement with respect to the properties in dispute in those proceedings were entered into as a result of compromises, leaving the question relating to the adoption in a nebulous condition.

(2.) While matters stood thus, Venkatamma was dealing with the three villages given to her under the award by creating mortgages over the same and also leased them to the present plaintiff's father on the 27 March, 1907, for a period of 20 years fixing the annual rent at Rs. 550. It is alleged in para. 8 of the plaint that under the terms of the lease deed the lessee could appropriate the expenses incurred by him in connection with the litigation concerning the villages out of the rents and profits thereof. During the continuance of the lease Venkatamma filed O.S. No. 34 of 1918 on the file of the Sub-Court, Chittoor, against the present plaintiff and his brothers for the recovery of arrears of rent, namely, Rs. 3,863-12-0. In,the written statement fded by the. defendants therein, they pleaded that a sum of Rs. 16,000 was due to them on account of the expenses incurred by them on behalf of Venkatamma in conducting the litigation relating to those villages. During the I pendency of that suit, Venkatamma died and Chengama Naidu (No. 2) brought himself on record as her legal representative and was made the second plaintiff. The suit was subsequently transferred to the Additional Sub-Court, Chittoor and numbered j as O.S. No. 26 of 1920. A razinama was eventually put in on the 17 March, 1920 and was recorded by the Court (vide Ex. G). Under this razinama, Chengama Naidu (No. 2), the second plaintiff therein, agreed to pay to the defendants therein a sum of Rs. 15,000 together with interest till payment and further created a charge for the realisation of this sum over the three villages (mentioned in the present B schedule), which formed the subject-matter of the lease granted by Venkatamma.. It is on the strength of this razinama that the present plaintiff, who says that the amount due under this razi decree was allotted to him in a partition between him and his brothers, has filed this suit for a declaration.

(3.) The usufructuary mortgage right in the aforesaid 62 villages possessed by the family of Palayagar Chengama Nayanim Varu (No. 1) is now represented by the amount deposited in the Sub-Court, Chittoor, in pursuance of a redemption decree passed in O.S. No. 31 of 1919 in favour of the Mahant of Tirupati who filed that suit for redemption, as he became the purchaser of the equity of redemption in those 62 villages in execution of a decree obtained against the Raja of Karvetnagar. Out of the proportionate amount due to Govindasami Nayanim Varu in respect of fiis othi right in the fourteen villages allotted to his share in the family partition, a certain amount would be payable to the owner of the othi right in the three villages mentioned in the B schedule by apportionment, and what the present plaintiff wants in this suit is a declaration of his right to receive that amount by virtue of the razinama decree in O.S. No. 26 of 1920, whereby a charge is created in his favour over the othi right in those three villages. This claim is opposed by defendants 3 and 4 who state that Chengama Naidu (No. 2) was never adopted by Govindasami and the alleged adoption is also invalid in law. They further contend that on the death of Venkatamma they became entitled to the estate of her husband Govindasami as the nearest reversioners. They attack the razinama in O.S. No. 26 of 1920 as collusive and fraudulent and contend that they are in no way bound by that razinama and the debt mentioned in that razinama is neither true nor binding upon them as reversioners to the estate.