(LAMBU) KRISHNAVENAMMA Vs. (NIRIKI) HANUMANTHA RAO

JUDGEMENT

(1.) The appellant was plaintiff 2 in the lower Court. The suit was orginally brought by plaintiff 1; a minor who was alleged to have been adopted by the present appellant, who was impleaded as defendant 2. The original plaintiff having died, defendant 2 was transposed as plaintiff 2 and has now become, on the dismissal of the suit the appellant. The suit was brought for the recovery of certain properties which admittedly belonged to the father of the appellant, one Subba Rao, He had a son by name Hanumantha Rao who however predeceased him. Subba Rao was, it appears, for several years before his death insane and on his death sonless in 1908 the appellant, his daughter, became his heir. On 17 January 1912 she executed Ex. 1 to defendant ], the deceased predecessor of respondents 1 to 3, releasing all her then, rights to defendant 1 described therein as the gnati (reversioner) and agreeing; to accept from him a maintenance for her lifetime of Rs. 5 a month. The appellant was apparently content with this arrangement for practically the whole period of 12 years; for she gave up possession and enjoyment of her father's property to defendant 1. On 15 January 1924 she executed an adoption deed in respect of her husband's brother's son the original plaintiff, a boy aged seven; and on the next day, i.e., 16 January, she purported to execute to him a second surrender of the same properties which she had already surrendered to defendant 1 and this suit was brought on 17 January 1924.

(2.) Curiously, in the plaint nothing was mentioned not even by reference, about the first surrender Ex. 1 and all that is said is that on 17 January 1912 defendant 1 got into possession of the properties having paid some money to the appellant (defendant 2). Defendant 1,. the only contesting defendant, denied the factum and validity of the plaintiffs adoption and also set up that even if the plaintiff's adoption were valid it would have no effect upon the surrender in his own favour which could not be attached on any ground whatsoever. Issues were framed on both these main heads of the case. It will be seen from the judgment of the learned Judge that he has gone fully into all the issues and on the question of adoption held against its validity. As will appear presently, it is not necessary for us to go into that. As the appellant's learned advocate said in opening the case he would have, in order to succeed, to show that the first surrender Ex. 1 was not binding upon the appellant even if there had been a valid adoption and if he cannot succeed in doing that it would be unnecessary to go into the question of the plaintiff's adoption. The learned advocate argued that, the learned Judge's opinion against the appellant upon this matter was not sustainable on three grounds:

(3.) Firstly, that defendant 1 is not a reversioner of the appellant's ather's family at all in whose favour alone there could be a surrender; secondly, that the surrender was not of the entire property because it omitted one house which belonged to the estate; and thirdly, that the surrender was vitiated by being brought about by fraud or misrepresentation or by threats of oppressive litigation employed by defendant 1 and a vakil who was helping him, one Venkoba Rao.