TALLAPRAGADA CHINA VENKATANARASIMHARAO Vs. YEDIDA PANCHAMUKHI ANJANEYA KUMARA VENKATA VARAHA NARASIMHASWAMI BEING MINOR BY MOTHER AND GUARDIAN BAPANAMMA

JUDGEMENT

(1.) The first defendant is the appellant in this second appeal. It arises out of a suit, O.S. No. 115 of 1940, filed by the plaintiffs-respondents for a declaration that the properties in the suit are the properties of the second defendant-respondent 3 and that the third defendant's right which is a half share in the properties is available to his creditors, on whose behalf the two plaintiffs-respondents filed the suit. The appellant China Venkatanarasimharao and the second defendant Kasturi Narasaraju are brothers and sons of one Chalapathi Rao. Narasaraju was given in adoption to his sister Satyavatamma in May 1930. The properties in suit were purchased in the names of the two brothers while they were minors by their mother acting as their guardian in the year 1926. After the second defendant was given away in adoption into a family which is admitted to be a very wealthy one, the first defendant treated the property in question as solely his. But there was trouble about the validity of the adoption and the adoption was finally declared to be invalid by this Court in A.S. No. 126 of 1937. It had been declared invalid even by the lower Court and that judgment was upheld by this Court. Meanwhile he seems to have got into financial troubles and there were a number of creditors of whom the plaintiffs-respondents are some. The appellant filed O.S. No. 267 of 1933 against one G. Satyanarayanamurti, a lessee of the suit house for recovery of the house. His brother Narasaraju was also made a defendant. Later on,. the adoptive mother of Narasaraju was also made a party. In that suit the question was whether the suit property was the exclusive property of the plaintiff therein who is the first defendant here. As the suit relating to the validity of Narasaraju's adoption was pending, O.S. No. 267 of 1933, was being adjourned from time to time and after the adoption was declared invalid, O.S. No. 267 of 1933 was taken up for trial. Narasaraju, the second defendant, got two additional issues raised: 9. Whether the second defendant reverted to all his rights in the natural family consisting of himself and the plaintiff in view of his adoption having been held invalid and if so, from what time? 10. Whether the second defendant is entitled to a moiety of the suit property as alleged by him either as a joint purchaser" or as a member of the family with the plaintiff. When the case came on for trial, he absented himself and so did his advocate. Some evidence was taken from the plaintiff and the suit was decreed on the 14th December, 1939. The present suit was filed on 24 July, 1940, for a declaration that the decree in O.S. No. 267 of 1933 was invalid, having been brought about by collusion on the part of the present first and second defendants. The allegation is that large monies were owing by Narasaraju and that Narasaraju, finding that if he succeeded in that suit in getting a half share in the suit property, the creditors would proceed against it, made up with his brother and allowed the suit to go for default. On the question of fact whether the decree in the prior suit was the result of collusion between the two brothers, we have the evidence of P.W. 3 who was the first defendant in the previous suit. He is a member of the Bar and he deposes that on the last day when the previous suit came on for trial, the first defendant went to him and stated that he and his brother Narasaraju had settled that matter, that Narasaraju and his adoptive mother would not appear at the trial and that he and the witness who was the first defendant therein might have their disputes settled. This evidence has been accepted by both the Courts and on that evidence it is clear that Narasaraju's abstention from appearing at the trial was clearly the result of some agreement between the two brothers. That could only be for the reason that as there were a number of creditors who would be really benefited by Narasaraju's succeeding in the suit, the brothers thought that it would be better to allow the property to be decreed as the property of the first defendant, plaintiff in that suit, rather than have it established that Narasaraju had a half share in the property. That being so, it is clear that the finding of the lower Courts that the decree in O.S. No. 267 of 1933 was obtained fraudulently and that it did not bind the creditors of Narasaraju, as correct.

(2.) The next point urged by Mr. P. Somasundaram, the learned advocate for the appellant, is that the lower appellate Court has arrived at wrong conclusions on the questions whether the two brothers, the appellant and Narasaraju, were really divided in status before the date of the adoption and whether the property was purchased with the ancestral funds and was therefore the joint family property of the two brothers. The lower appellate Court held that it was not proved that the property was acquired with the joint family funds and it was ako held that the two brothers had become divided in status prior to Narasaraju's adoption. Mr. P. Somasundaram has filed some documents before me and he contends that the effect of those documents would be to show that the two brothers were joint and that the property was acquired with the ancestral funds of the family. It is un-necessary to admit them, because I shall now proceed on the footing that the two brothers were joint in status and that the property was acquired from the joint family funds and was therefore the coparcenary property of the joint family. Even on this footing the decree of the lower appellate Court must be upheld.

(3.) The effect of an invalid adoption on the rights of the adoptee has been dis-cussed from very early times. In Bavani Sankar Pandit V/s. Ambabay Ammal (1863) 1 M.H.C.R. 363, it was held that in reason and in good sense it would hardly seem a matter of doubt that where, there is no valid adoption, in other words, where no adoption has taken place, no claim of right in respect of the legal relationship of adoption can properly be enforced at law and that the rights of the adopted son in the natural family remain unaffected. This view was followed by Westropp, C.J., in Lakshmappa V/s. Ramava (1875) 12 Bom. H.C.R. 364, 397. In Vaithilingam V/s. Murugaiyan , it was held that an invalid adoption does not per se destroy the adoptee's rights in the natural family. The Bombay High Court has taken the same view in Dalpat Singji V/s. Raisingji (1915) I.L.R. 39 Bom. 528. In Calcutta there are two decisions. One is in Sajanisundari Dasi V/s. Jogendra Chandra Sen (1930) I.L.R. 58 Cal. 745, where it was held that in the case of an invalid adoption, the adopted son acquired no rights in the family of adoption and lost none in the family of his birth. The question was again considered by the Calcutta High Court in Hari Das Chatterji V/s. Manmatha Math Mallik (1937) 2 Cal. 265 and there is an elaborate discussion of this question and the decision followed the earlier decision referred to above. There is only one early decision of the Calcutta High Court reported in Rajcoomaree Dossee V/s. Nobocomor Mullick Boulnois 137(143), where a contrary view had been expressed. The learned Judges, dealt with that decision, then referred to the various decisions of Madras, Bombay and other Courts and held that the correct view is that the adoptee does not lose his rights in the natural family if the adoption is invalid. The contrary view was expressed by Mr. Mulla in the earlier edition that a person whose adoption is invalid has still some rights in the adoptive family by way of maintenance. That this view cannot be upheld is clear from the observations of the Judicial Committee in Ramkishore Kedarnath v. Jainarayan Ramrachhpal (1913) 25 M.L.J. 512 : L.R. 40 I.A. 213 : I.L.R. 40 Cal. 966 (P.C.) where they observed thus: The basis of the suit is that the adoption of Jainarayan was wholly invalid, in which case he was in the view of the law an absolute stranger. The correct view is that a person whose adoption is invalid is a perfect stranger to the adoptive family. That being so, he can have no rights, not even the right of maintenance in the adoptive family. In the 9 edition of Mr. Mulla's Principles of Hindu Law, the view expressed in the earlier decisions is noticed and para-graph 510, as it now stands, reads thus: As a general rule it may be laid down that where there has been an adoption in form, but such adoption is invalid, the adopted son does not acquire any rights in the adoptive family, nor does he forfeit his rights in his natural family. Reference is made to the decisions in Bavani Shankara Pandit V/s. Ambabay Ammal (1863) 1 M.H.C.R 363 and other cases. In Mayne's Hindu Law, 10 edition, the same view is expressed at page 284. In fact this view was expressed by Mr. Mayne in all the earlier editions. In the result, I hold that even taking it that the two brothers were members of a joint family and. that the property was acquired with the joint family funds and was therefore the joint property of the two, the invalid adoption of Narasaraju did not take away the right of Narasaraju to a share in the joint family properties. That being so, the creditors have a right to proceed against that share and the decree in the previous suit is obviously not binding on them, having been brought about by collusion between the two brothers.