VADLAMUDI GOPALAKRISHNAYYAAND VADLAMUDI SUBBA RAO MINOR, BY NATURAL FATHER AND GUARDIAN VADLAMUDI SEETHARAMASWAMY; VADLAMUDI GANGAYYA; VADLAMUDI MANIKYAM AND VADLAMUDI VENKATASUBBA ROW Vs. VADLAMUDI GANGAYYA; BOBBA PADMANABHYYA; VADLAMUDI LINGAYYA

JUDGEMENT

(1.) The object of the suit in which these appeals arise was to obtain a declaration that the 1st defendant was not the adopted son of one Gopalakrishnayya and that the plaintiff was entitled to 1/15th share of the property in Schedule A to the plaint, to recover the same from the defendants, to obtain an apportionment of the property with reference to bad and good soil and for other reliefs. The 84th and 85th defendants, unless the 93rd defendant was validly adopted by Manikyam, the 92nd defendant, would be the nearest reversioners of Gopalakrishnayya and the plaintiff, who is the remoter reversioner, claims 1, 15th share of the estate under a deed of arrangement entered into between the 84th and 85th defendants, who had obtained a surrender of the properties from Gopalakrishnayya s mother Rangammah on 23rd November 191-1, and the rest of the presumptive reversioners living at the time. Gropalakrishnayya had died on 30th July 1-895 leaving a widow Ammama, who died subsequently on 3rd November 1911 whereupon the properties devolved on Gopalakrishnayya s mother, Rangamma, who would be about 90 years old and is still alive. The main contest was between the whole body of reversioners on one side basing their title on the surrender by Rangamma and on the other the 1st defendant claiming to have been validly adopted by the widow Ammama and the 93rd defendant claiming to have been adopted by Manikyam, the 92nd defendant, the widow of one Koniah, a deceased first cousin of Gropalakrishnayya and who would, therefore, have a better right to the reversion than the 84th and 85th defendants. The defendants in the suit are, besides the reversioners other than the plaintiff, various other persons who are in possession of different items of property under some claim or other, either by transfer from the reversioners or from the widow or otherwise. The 91st defendant, it may be mentioned, is the National College of Masulipatam to which a gift was made of 1/15th share by the reversioners. A large number of issues were tried and in the result the learned Subordinate Judge decreed the plaintiff s claim. We shall deal with the different questions argued before us in the several appeals and memoranda of objections in their order.

(2.) On the question relating to the authority alleged to have been given by Gopala-krishnayya to his widow Ammama to make an adoption, we have no hesitation in agreeing with the conclusion of the learned Subordinate Judge. The burden of proving that the adoption was made under proper authority lay upon the 1st defendant, but having considered the evidence of the defendant s witness on this point, we are not at all satisfied that Gopalakrishnayja gave authority as is alleged. Gopalakrishnayya died on the 30th July 1895 and the case of the defendant is that the authority was given to the widow on the same day. It is not clear upon the evidence what he actually died of. The evidence adduced in support of the authority to adopt is that he died suddenly, and that the illness, whatever it was, only occurred on the very date of his death. The man who is alleged to have treated him, the defendants 14th witness Amba Narasayya, says that he hardly knew what the matter was with this man, but however that may be, the most important evidence on which Mr. Ramachandra Aiyar naturally relies in support of his case is that of the 13th witness for the defendants, a second grade Pleader. He says that he came to know Gopalakrishnayya as both of them were fond of music and used to meet at music parties and theatres The learned Subordinate Judge has discussed this evidence at great length and his conclusion is that the testimony of this witness cannot be acted upon. Be paints out that this witness s name did not appear in any of the lists of witnesses but that he was summoned only a few days before the defendants let in their evidence, and was not served with summons until the day before he was examined. The explanation as to why his name did not appear in any of the previous lists of witnesses is that it did not transpire that he was present at the time of Gopalakrishnayya s death or knew anything about the alleged authority to adopt, until the defendants 14th witness Amba Narasayya happened to be questioned by the Pleader for the defence when he disclosed this man s name. We find it impossible to believe that if this witness was actually present at the deathbed of Gopalakrishnayya, his name would not have been known to everybody else present there and that the defendants would not have known from the very beginning that this man knew about the authority to adopt. The other men who were present at Gopalakrishnayya s bedside were ordinary villagers and if the defendants 13th witness was also there and heard the deceased give authority to his wife to adopt a child on his death, it is fairly certain he would have been one of the first to be summoned to give evidence in the case. As regards the other witnesses the Subordinate Judge has dealt with their evidence in paragraph 128 of his judgment and we are unable to say that his estimate of their evidence is incorrect. Farther the circumstances of the case strongly support the conclusion of the trial Judge. The authority is stated to have been given in 1865, but it is not mentioned in any sort of document or writing until the very date of adoption, that is till 1911. If any such authority had been received by Ammama, it can be assumed with certainty that there would have been more than one occasion to mention the fact during all these years. Ammama was seriously ill in 1898 and the Subordinate Judge is right in pointing out that if she had any authority to adopt, she would have made some attempt to carry out her husband s wishes at that time. The absence of all reference in Exhibit FF to any such authority also negatives the supposition that the authority was actually given. It is pointed out by the learned Subordinate Judge that the story of the defence is that from the very birth of the 1st defendant Animama wanted to adopt him. If there was the least truth in the suggestion we cannot understand why, if she had received authority from her husband, she would have refrained from making the adoption till the very last day of her death. We, therefore, agree with the Subordinate Judge that the adoption of the 1st defendant is not valid.

(3.) The adoption of the 93rd defendant by Manikyam, the widow of Koniah, is said to have taken place on the 29th October 1911, that is to say, previous to Exhibit S, the deed of surrender executed by Rangamma on the 23rd November 1911. Manikyam at that date was 30 years of age and it is not disputed that though the authority to adopt had been given to her by her deceased husband 14 years ago, she made no attempt to adopt all this time, and there can be little doubt upon the evidence that if she did make the adoption as alleged, it must have been brought about more or less hurriedly and with the object of defeating the reveisioners of Gopalakrishnayja who, it is said, were anxious to get hold of the estate by means of a surrender from Gopalakrishnayya s mother, Rangamma. Manikyam bad also inherited from her husband somewhat valuable properties of the value of Rs. 15.000 and we have no hesitation in saying that if she was at all anxious to adopt in accordance with the authority given by her husband, she would have made the adoption long before 191l. The suggestion made on behalf of the appellant is that it was at the time that Ammama was taken ill that the idea occurred to her advisers, especially the 1st defendant who was the gomasta of both Ammama and Manikyam, to have an adoption made by Manikyam in order to make sure that the property of Gopalakrishnayya did not go to the reversioners. There can be no doubt that the relations both of Ammama and Manikyam on the one hand and of the reversioners on the other were anxious to secure to themselves the property which was in the possession of Ammama and which on Ammama a death would devolve on Rangamma, the mother of Gopalakrishnayya.