HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S. No. 2330 of 1993 And Tr.AS.No.752 of 2012 Date: 18th July, 2014 Between :
Valeti Siva Prasad & Another .. Appellants And Valeti Manikyamma (died) And another.
.. Respondents HON'BLE SRI JUSTICE M.S.K.JAISWAL COMMON JUDGMENT:
A.S. No. 2330 of 1993 And Tr.AS.No.752 of 2012 These two appeals arise out of a common Judgment dt. 13.09.1993 in O.S.No.34 of 1988 (Old No.69 of 1984) on the file of District Munsif, Chirala, and O.S.No.38 of 1985 on the file of the Subordinate Judge, Chirala. Originally as against the dismissal of O.S.No.34 of 1988, the appeal was filed on the file of District Judge, Ongole, and as against the decree of O.S.No.38 of 1985, the appeal is preferred before this Court as A.S.No.2330 of 1993. Since both the appeals arise out of the common Judgment, the appeal pending on the file of District Judge, Ongole was transferred to this Court and numbered as Tr.A.S.No.752 of 2012.
2. The property that is involved in both the suits is one and the same and they are described as plaint-A and B Schedule properties. Plaint A Schedule consists of Ac.1.00 land in Sy.NO.328/1B, and Ac.1.00 in Sy.No.344/1, and Ac.2.05 cents in Sy.No.339 situated Inkollu village of Prakasam District. Plaint B Schedule property consists of Ac.1.21 cents in Sy.No.31/5 and a tiled house on an extent of 98 sq. yards, bearing Door No.1/105 of Gangavaram village of Prakasam district.
3. O.S.No.38 of 1985 is filed for recovery of possession of plaint A and B schedule properties and also for mesne profits at the rate of Rs.8,000/- per annum from 1984-85 onwards. O.S.No.34 of 1988 is filed for permanent injunction by the 1st defendant in O.S.No.38 of 1985. By the Judgment and decree, the trial Court decreed O.S.No.38 of 1985 and dismissed O.S.No.34 of 1988.
4. The relationship in between the parties in both the suits is not in dispute. Valeti Veeraiah had three sons, namely, Valeti Laxmi Narasayya, Valeti Ramakrishnayya and Valeti Ramachandrayya. These three brothers inherited the properties left behind by their father, and the property, which is subject matter of both the suits fell to the share of Ramakrishnayya. Valeti Manikyamma (1st plaintiff in O.S.No.38 of 1985) is the wife of Ramakrishnayya. Valeti Shiva Prasad (Defendant No.1 in O.S.No.38 of 1985 and plaintiff in O.S.No.34 of 1988) is the natural son of Valeti Ramachandrayya. Kari Anantha Lakshmi, the Second plaintiff in O.S.No.38 of 1985, who is the 1st defendant in O.S.No.34 of 1988 is the sister’s daughter of Valeti Manikyamma; and the 2nd defendant is her husband. Valeti Ramakrishnayya died issueless on 25.1.1974.
5. The pleadings of the parties may be briefly noted as under:
Plaint averments in O.S.No.38 of 1985:-
The plaintiff No.2 is the sister’s daughter of the 1st plaintiff. Valeti Lakshminarayana, Ramakrishnayya and Rama Chandraiah are brothers and are the sons of late Veeraiah of Gangavaram village. They divided their joint family properties long ago between themselves and in the said division, the suit properties had fallen exclusively to the share of Ramakrishnayya, who is the husband of the 1st plaintiff herein, and he was in possession and enjoyment of the same during his life time. He died issueless and intestate on 25-01-1974 leaving behind him his wife as his sole heir. After his death, she came into possession of the suit schedule properties and ever since then she has been in exclusive possession and enjoyment of the same. The 1st plaintiff is an illiterate woman and she was living alone in item No.2 of the plaint 'B' schedule house after the death of her husband. Recognizing her right over the said house, her name was mutated in the panchayat records. But on account of neglect of the village Karanam, pattas for the lands in both the villages were not changed in her name though she has been in continuous possession and enjoyment of those properties and paying revenue to the Government. Since she has no male help, she was depending upon the 2nd defendant who is her husband’s brother for cultivation of the land. But under the pretext of helping her, he played fraud upon her in collusion with village officers projecting the 1st defendant, who is his 3rd son as the adopted son of late Ramakrishnayya. He also wanted to get more loans from the bank for his benefit in the name of the 1st defendant, then a minor. While the 1st plaintiff was giving money for paying revenue, receipts were being taken in the name of the 1st defendant. The pattas for the suit land still continues in the name of late Ramakrishnayya. The 2nd defendant secured false certificates from the village Karanam in collusion with him. On their basis loans were raised from Union Bank of India, Santaravur on the name of the 1st defendant. Those and such other fraudulent things were perpetuated by the defendants without the 1st plaintiff’s knowledge. Hence, those papers are not binding on her. In connivance with Village Officers and without the knowledge of the 1st plaintiff or notice to her, the name of the 1st defendant was got entered in the record of rights register ignoring the plaintiff’s right. The plaintiff was kept in dark about all these transactions by the defendants who were maintaining cordial relationship with her. Quarrels arose between the parties in the year 1983. The 1st plaintiff decided to look after her affairs on her own. She was afraid of her life and came over to the house of the 2nd plaintiff for safety, where she was looked after with all affection. The 1st plaintiff got the suit lands cultivated through coolies in the year 1983- 84.
The 2nd plaintiff is the sister’s daughter of the 1st plaintiff and out of love and affection, the 1st plaintiff executed a gift deed, dated 16-02- 1984 in her favour bequeathing the plaint ‘A’ schedule properties upon her. Similarly, the 1st plaintiff executed another gift deed, dated 15-02- 1984 in her favour for the plaint 'B' schedule properties. Ever since then she is being looked after by the 2nd plaintiff and her husband.
While the matter stood thus, the 1st defendant filed O.S.No.69 of 1984 on the file of Principal District Munsif, Chirala, against the 2nd plaintiff and her husband for the relief of permanent injunction in respect of this suit schedule property claiming to be the adopted son of late Ramakrishnayya. He obtained ex parte injunction and it was later on vacated by the trial Court. But in C.M.A.No.31 of 1984, the appellate Court reversed the trial Court’s order and granted ex parte injunction. In pursuance thereof, they entered in possession of the suit property by dispossessing the plaintiffs. The allegations in that plaint are all false. Hence this suit for the relief of possession of the suit property and also for past and future profits.
Averments of the written statement:-
The first defendant filed a written statement and the 2nd defendant adopted the same denying the plaint allegations.
The relationship between the parties as set out in the plaint is true. But the other allegations that the 1st defendant is not the adopted son of late Ramakrishnayya, that the defendants in collusion with Village Officers fabricated documents without the knowledge of the plaintiffs, and that they also raised loans on the strength of those documents to defraud the rights of the plaintiff No.1 in the suit properties are all absolutely false and invented for the purpose of the suit. This suit has been filed as a counter blast to O.S.No.69 of 1984 filed by the 1st defendant herein against the 2nd plaintiff and her husband on the file of Principal District Munsif, Chirala. The plea of the 1st plaintiff that her husband died intestate is false. Her husband by name Ramakrishnaiah and the 2nd defendant are brothers. Ramakrishnaiah who was a religious person had no issues. For spiritual benefits and temporal assistance, he adopted the 1st defendant when he was an infant. He was physically delivered by his natural parents to Ramakrishnaiah and his wife, they accepted him and ever since then they brought him up as their adopted son by keeping him in their house. The physical delivery of the boy to the adoptive parents is itself sufficient to constitute a valid adoption as per law. This defendant was recognized as adopted son by revenue authorities and all concerned.
The suit properties are the joint family properties of the 1st defendant of late Ramakrishnaiah. As a coparcener, the 1st defendant is entitled for half share in the suit properties in his own right. Ramakrishnaiah died on 25-01-1974 and after his death, the 1st defendant and his adoptive mother have been in continuous possession of the suit property for over 10 years by living in one family. Mutation took place in the name of this defendant in the revenue records and he also paid cist for the lands and ryotwari patta pass book was issued to him. He even raised loans from the banks on the security of some of the suit lands. The treatment of the property over a period of 10 years long after the death of Ramakrishnaiah clearly establishes his rights in the property. As there was a threat to his possession from the 2nd plaintiff and her husband, this defendant filed O.S.No.69 of 1984 and obtained ex parte injunction against them.
The 2nd plaintiff and her husband with a view to grab the suit properties brought the 1st plaintiff under their influence by carrying false tales about these defendants. The alleged gift deeds are fraudulent documents, and they are not binding on this defendant. This defendant discharged debts of his adoptive father to a tune of Rs.20,000/- after his death.
It has now come to the knowledge of this defendant that late Ramakrishnayya executed a will on 16-01-1974 bequeathing the suit properties upon this defendant creating a life estate in favour of his wife. The said will was registered on 21-01-1974. The 1st plaintiff was fully aware of the factum of execution of the will and is in possession of the original, but suppressed it. Since this defendant is a coparcener, his right can in no way be defeated by the said will and it is operative so far as the share of the testator alone.
Till February, 1984, the 1st plaintiff was living with this defendant in the family house afterwards she went away to live with 2nd plaintiff. The house is in dilapidated condition. The suit is not maintainable. Hence, it may be dismissed.
Issues:-
On the basis of the above pleadings, the following issues were framed for trial:-
1) Did late Ramakrishnaiah died issueless?
2) Did late Ramakrishnaiah die possession of suit properties?
3) Is the adoption of D.1 by late Ramakrishnaiah is true?
4) Had the plaintiffs exclusive title and possession in suit properties?
5) Is the will dated 16-01-1974 by late Ramakrishnaiah is true, valid and binding on plaintiffs?
6) Is D.1 a coparcener and is entitled to half share in the suit property along with 1st plaintiff?
7) Are 1st plaintiff and D.1 in joint possession of suit properties?
8) Is the plaint mentioned dispossession true?
9) Are the plaintiffs entitled to recover possession of suit properties from the defendants?
10) Are the plaintiffs entitled to pass profits? If so, to what rate?
11) To what relief?
O.S.No.34 of 1988 (O.S.No.69 of 1984 of District Munsif Court, Chirala):-
This is a suit filed by the 1st defendant in O.S.No.38 of 1985 for the relief of permanent injunction. The allegations in the plaint are to the effect that he has been in exclusive possession and enjoyment of the suit schedule properties as the adopted son of late Ramakrishnaiah and that the defendants who are strangers tried to dispossess him from the same.
The 1st defendant filed a written statement and the 2nd defendant adopted the same denying the allegations in the plaint. They admitted the relationship between the parties and the factum of Ramakrishnaiah dying issueless. They pleaded that Ramakrishnaiah never adopted the plaintiff and after his death, his wife Manikyama succeeded to all the suit schedule properties, she was in possession and enjoyment of them with absolute rights and out of her free will, she gifted the entire suit property to the 1st defendant under two gift deeds dated 16-2-1984 and 15-02- 1984. They also pleaded that as on the date of the suit, the suit lands were in possession of Manikyamma and also the 1st defendant.
Issues: On the basis of the above pleadings, the following issues were framed for trial:-
(1) Whether the plaintiff is entitled to permanent injunction as prayed for?
(2) To what relief?
6. O.S.No.69 of 1984 on the file of the District Munsif Court, Chirala, was transferred to the Court of Subordinate Judge, Chirala for joint trial along with O.S.No.38 of 1985, and the transferred suit was re-numbered as O.S.No.34/1988. Both the suits were clubbed and evidence was recorded in O.S.No.38 of 1985, and both suits are disposed of by common Judgment, dt. 13.9.1993.
7. On behalf of the plaintiffs, PWs.1 to 7 were examined and Exs.A.1 to A.19 were marked. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B.1 to B.71 were marked.
8. The 1st defendant in O.S.No.38 of 1985 and the plaintiff in O.S.No.34 of 1988 is the appellant in both the appeals. The contention of the appellant is that the Court below has erred in decreeing the suit of the respondent while dismissing the suit filed by the appellant. It is submitted that satisfactory and clinching evidence was produced to show that Ramakrishnayya during his life time adopted the appellant (Shiva Prasad), who was the son of Ramachandrayya, the brother of Valeti Ramakrishnayya. The said Ramakrishnayya also executed a Will Deed in favour of his wife Manikyamma, conferring limited estate on her and after her death, the property was to devolve on the appellant-Shiva Prasad. The Court below did not consider the fact that ever since the death of Ramakrishnayya in the year in 1974, it is the appellant-Shiva Prasad, who had been in possession and enjoyment of the agricultural lands and his adoptive mother Manikyamma has allowed him to cultivate the lands on the ground that he is the adoptive son.
9. The learned counsel for the appellant submits that the voluminous evidence that was adduced to show that the possession of the plaint schedule property has not been properly appreciated by the Court below. It is further submitted by the appellant that the trial Court also erred in accepting the case of the respondents that the appellant-Shiva Prasad was not adopted by Manikyamma and her husband Ramakrishnayya and that after the death of her husband, Manikyamma used to take the help of Ramachandrayya, the brother of her husband for the purpose of agricultural operations.
10. On the other hand, it is contended by the respondents that by using the influence, the records are manipulated. However, the title in respect of the schedule lands still stands in the name of her husband Ramakrishnayya. Manikyamma strongly denied that Shiva Prasad was adopted by her and her husband Ramakrishnayya. Manikyamma during her life time executed a Gift Deed, in favour of the 2nd plaintiff – Kari Anantha Lakshmi, giving all her properties and after the death of Manikyamma, the 2nd plaintiff-Anantha Lakshmi became the absolute owner of the schedule properties. It is further submitted that the Court below has properly considered the entire material on record and held that Valeti Shiva Prasad failed to prove that he is the adopted son of Ramakrishnayya and Manikyamma. On the other hand, Manikyamma and Anantha Lakshmi proved that after the death of Ramakrishnayya, the suit schedule property devolved on Manikyamma and after her on Anantha Lakshmi by virtue of the document executed in her favour.
11. In view of the above rival contentions and submission, the points that arise for consideration are:
(i) Whether Valeti Shiva Prasad is the adopted son of Ramakrishnayya and Manikyamma?
(ii) Whether Ramakrishnayya executed the Will – Ex.B.70 as propounded by Valeti Shiva Prasad, the appellant in both the appeals (D.1 in O.S.No.38/1985 and plaintiff in O.S.No.34/1988)
(iii) Whether ma in exercise of her absolute rights has executed Gift Deeds – Exs.A.2 and A.3 in favour of Anantha Lakshmi, in respect of the schedule properties in her favour?
(iv) Whether the Judgment and decree under appeal is liable to be set aside, modified or varied?
12. Point No.1: The relationship between the parties is not in dispute. Briefly stated, Valeti Laxmi Narasayya, Valeti Ramakrishnayya and Valeti Ramachandrayya are own brothers and they had partitioned their properties in which the plaint-A and B schedules, which are more clearly described in Para-2 above, fell to the share of Ramakrishnayya. For the sake of convenience the parties shall be referred as they are arrayed in O.S.No.38 of 1985 against which A.S.No.2330 of 1993 is filed. The 1st plaintiff is the wife of Ramakrishnayya whereas the 2nd plaintiff is her sister’s daughter. 2nd Defendant is the Rama Chandrayya, who is the brother of Ramakrishnayya, whereas the 1st Defendant is his natural son. Even before the marriage between the 1st plaintiff and Ramakrishnayya, they were related in as much as Ramakrishnayya was the maternal uncle of the 1st plaintiff/PW.1. The 1st plaintiff and Ramakrishnayya had no children. The 1st plaintiff examined herself as PW.1 and the 2nd plaintiff is examined as PW.2 whereas 1st Defendant is examined as D.W.1 and 2nd Defendant is examined as D.W.3.
13. Ramakrishnayya died on 25.01.1974. The 1st plaintiff being an illiterate lady, the affairs pertaining to her property were being looked after by 2nd Defendant /DW.3. The plaintiffs filed the suit for recovery of possession of the suit schedule properties since admittedly they had been in possession and enjoyment of the defendants. The 2nd plaintiff claims the property on the basis of two registered gift deeds, Exs.A.2 and A.3, said to have been executed by Manikyamma/1st plaintiff/PW.1. On the other hand, the 1st Defendant, who is supported by his father 2nd Defendant /DW.3 contends that during the life time of Ramakrishnayya and when the 1st Defendant was aged about 5 years, Ramakrishnayya and Manikyamma have adopted him and ever since then he had been treated and living as their son. After the death of Ramakrishnayya he became coparcener along with the 1st plaintiff, the widow of Ramakrishnayya and therefore entitled to the equal share in the suit schedule properties. The further claim of 1st Defendant is that about nine days prior to his death, Ramakrishnayya executed a Will Deed, copy of which is marked as Ex.B.70, bequeathing his properties in favour of his wife Manikyamma/1st plaintiff and after her the entire property was to devolve on 1st Defendant.
14. In view of the above, the point in controversy boils down to the question as to whether 1st Defendant is the adopted son of Ramakrishnayya and Manikyamma. If that is proved, it is needless to say that even if the Gift Deeds Exs.A2 and A.3 are executed, the same cannot be taken as valid inasmuch as Manikyamma cannot gift the entire schedule properties in favour of the 2nd plaintiff. At best she can gift only her share of the property but not the entire property since the 1st Defendant will be the coparcener.
15. Adoption displaces the nature of succession of property. It virtually amounts to a death and birth of a person i.e., death in the natural family and birth in the adoptive family. Therefore, the law casts the burden of proving the said aspect on the person who pleads adoption. It is obligatory on his part to discharge the burden of proving not only the factum of adoption but also its validity. The essential requisite for a valid adoption being the physical act of giving and taking, which is imperative in all adoption to whatever the caste or community they belong. The proof so produced should be free from all suspicion of fraud and so consistent and possible as to give no occasion for doubting its truthfulness. The object of corporal giving and receiving in adoption is obviously to secure due publicity and for this purpose it is essential to have a formal ceremony. Though no specific ceremony is prescribed, but what is required is that the natural parent should handover the adoptive boy and the adoptive parent shall receive him. If a person has been regarded and treated as an adoptive son for long period, it raises a strong presumption in favour of the validity of adoption but that do not dilute the burden of proving the said aspect on the person so pleading.
16. Now, how far the 1st defendant has proved his case needs to be seen with reference to the oral and documentary evidence that is produced on his behalf.
It may be recalled that the 1st plaintiff/PW.1, namely the wife of Ramakrishnayya strongly denied that Ramakrishnayya adopted 1st Defendant at any point of time. It is nobody’s case that the relationship between the Ramakrishnayya and 1st plaintiff/PW.1 was in any way different from an orthodox couple. They have lived together till 25.01.1974 when Ramakrishnayya died after being hospitalised for few days. The pleadings of the 1st Defendant in his written statement are to the effect that for spiritual benefits and temporal assistance, Ramakrishnayya adopted 1st Defendant when he was infant, that he was physically delivered by his natural parents to Ramakrishnayya and his wife (Manikyamma/PW.1), that they accepted him and ever since then they brought him up as their adopted son by keeping him in their house. He further pleaded that the defendant was recognised as the adopted son by the authorities and all concerned. The 1st Defendant is conspicuously silent about the date of adoption, his age at the relevant point of time and the nature of ceremonies that were performed.
17. As against the above pleadings, there is the evidence of the 1st Defendant, who examined himself as D.W.1. He deposed that Ramakrishnayya and his wife/PW.1 adopted him in a solemn ceremony conducted by a Purohith and that he was physically delivered to the adoptive parents by his natural parents amidst chanting of mantras by purohiths. The natural father of DW.1/1st Defendant is examined as DW.3, and DWs.4 to 6 are examined in support of their contention. It is in their evidence that Ramakrishnayya and his wife/PW.1 adopted the 1st Defendant in an adoption ceremony that took place in 1965. This oral evidence of DW.1 and DWs.3 to 6 is denied by the plaintiffs. The 1st plaintiff is examined as PW.1 and she categorically asserted that she and her husband never adopted the 1st Defendant and she denied the performance of any ceremonies or the factum of corporeal transfer of the boy from the natural family to the adoptive family. The 2nd plaintiff and her husband have been examined as PWs.2 and 5. They are the close relations of the family. They denied that Ramakrishnayya and PW.1 have adopted 1st Defendant.
18. Excepting for the oral evidence, nothing is placed on record by the defendant to show that any ceremony of adoption took place and that there was any giving and taking of the child at that time. According to the defendants, though at a later point of time it has been placed on record that the adoption took place in the middle of 1965, that means ever since then, the 1st defendant should have been living with Ramakrishnayya and PW-1 and brought up by them. The discrepancy is with regard to the age of the 1st defendant at the time of adoption. While some witnesses say that he was aged about 5 years, the other says that the 1st defendant was aged about 10 years at the time of adoption.
19. In view of the above nature of evidence, we have to look into the documentary evidence to see as to which of the version is correct. If really the 1st defendant was adopted, when he was aged about 5 years in the year 1965, and had been living with Ramakrishnayya and PW.1 ever since then, there is bound to be documentary evidence, more particularly, in view of the fact that Ramakrishnayya was admittedly a literate person. In order to disprove the claim of the 1st defendant that he had been living with PW.1 and Ramakrishnayya ever since 1965, the plaintiff produced Exs.A.5 and A.6, which are the voters’ lists of the year 1980. In the said voters’ lists in the house where PW.1 was residing, her name is shown at Sl.No.351, whereas the name of the 1st defendant is shown at Sl.No.319, Ramachandrayya, i.e., the nature of the 1st defendant figures at Sl.No.314, and the other family members of Ramachandrayya are shown in continuity i.e., from 314 to 319. What is more in the said voters’ list the 1st defendant has been described as son of Ramachandrayya i.e., 2nd defendant but not Ramakrishnayya. Similar entries are found in the subsequent voters’ list of 1983, Ex.A.6.
The litigation between the parties started in 1984. It is manifest that long prior thereto, plaintiff was staying alone in the suit schedule property and 1st defendant was staying with his natural parents, and as a matter of fact, he has been described as son of Ramachandrayya, who is his natural father. There is no gain saying the fact that the voters’ lists are prepared only after proper enquiries and ascertaining the facts from the local people, who knows the men and matters of the village in detail. There is no question of there being any incorrect information being incorporated or interpolated in a voters’ lists. Even if there is a factual incorrect entry in the voters’ list, appropriate steps need to be taken for the rectification, which admittedly have not been taken either by 1st defendant or his natural father-2nd defendant.
20. The other document that is relied upon by the plaintiffs is Ex.A.4 which is a Ration-Card for the years 1983 to 1986. This also shows that only the 1st plaintiff was part of her family but the 1st defendant was never shown therein as being the son, and residing with PW.1. In a case of this nature, when an infant is adopted, the crucial document will be the education record in the event of the infant being admitted in schools. In the instant case, the plaintiffs have produced Exs.A.15 to A.18, which are the entries in the Elementary School Register and also in the High School Register. Admittedly, the 1st defendant studied up to X-Class in Gangavaram village. According to the defendants, the 1st defendant was aged about 5 years when adoption took place. When the 1st defendant was admitted in the elementary school, his father’s name is shown as Ramachandrayya (2nd defendant), but not Ramakrishnayya. Ex.A-15 is the certificate issued by the Elementary School which clearly shows that at the time of admission of the 1st defendant in the school, he is shown as the son of Ramachandrayya. As per this certificate, the date of birth of the 1st defendant is shown as 08.10.1958, and he studied in the said school from July 1964 to 1970. If the adoption took place in 1965, appropriate entries would have been made in the school record, but ought not have been left as they are, which is detrimental to the status of the 1st defendant. Ex.A.17 is the certificate issued by the Head Master of SVK High School, Gangavaram, and he studied in the said School from VI-Class to X-Class i.e., from June 1970 to 1974. Even in this school record, where the 1st defendant was admitted subsequent to the alleged adoption, the 1st defendant has been described as son of Ramachandrayya-2nd defendant, but not Ramakrishnayya. These educational certificates have been proved by PWs.6 and 7, who are the concerned Head Masters of the School, and these witnesses have produced the certified copies of the entries in the original admission register, which are marked as Exs.A.18 and A.19. These entries are made by independent authorities and have been allowed to be on record by the interested person during the years from 1964 to 1974, even though Ramakrishnayya died on 25.01.1974. This documentary evidence, the genuineness of which cannot be suspected, clinchingly establishes that from 1964 to 1974 in all school records the 1st defendant has been described as son of Ramachandraiah/2nd defendant, but not Ramakrishnayya. Significantly, these entries are allowed to be continued on record for nearly nine years even after the alleged adoption.
21. As against the above independent documentary evidence, the defendant produced certain documents in support of his contention. Ex.B.1 is the registered mortgage deed dt. 05.12.1975 executed by 1st defendant in favour of Union Bank of India, Santaravur under which certain property was mortgaged. The loan was granted to 1st defendant on the basis of Certificate, Ex.B.2 issued by the Village Karanam. Exs.B.3 to B.18 are the documents connected with the said loan transaction. In Ex.B.8, the 1st defendant was described as the son of Ramachandrayya/2nd defendant. Similarly, in Exs.B.10, B.14 and B.18 he was originally described as son of Ramachandrayya/2nd defendant, but later on that name was struck of and the name of Ramakrishnayya was included. Exs.B.19 to B.28, B.37 and B.38 are the cist receipts. Similarly, Exs.B.45 to B.58 and B.65 to B.68 are the cist receipts. Ex.B.29, B.32, B.36 and B.39 are the documents with regard to the loan transaction with the Union Bank of India. Exs.B.42 and B.61 are the ryotwari pass books whereas the Ex.B.42 is the certified copy of the record of rights in favour of the 1st defendant. On the basis of these documents, it is contended that he has paid the cist for suit schedule properties in the capacity of son of Ramakrishnayya but not Ramachandrayya. Merely because some cist receipts stand in the name of a particular person that cannot be taken as a conclusive proof of the fact that the person, who paid the cist, is the owner of the property for which the tax is paid or that he has got anything to do with the property.
22. It may be recalled that the Defendants 1 and 2 are not the strangers either to the 1st plaintiff or the property. After the death of Ramakrishnayya, the 1st plaintiff had none, except 2nd defendant, the brother of her husband and his children, including 1st defendant, who were taking care of the property. In this back ground, merely because certain tax receipts are in the name of the 1st defendant, it may not be taken as establishing the fact of the 1st defendant being the adoptive son of Ramakrishnayya and PW.1. As against the above tax receipts, the plaintiffs produced Exs.A.9 to A.13, which are the certified copies of the No.10(1) Accounts, which clearly show that the suit schedule properties stood in the name of Ramakrishnayya till his wife Manikyamma executed the gift deeds, Exs.A.2 and A.3 in favour of the 2nd plaintiff- Anantha Lakshmi.
23. That apart, the entries in the revenue records, at best can be taken into consideration for determining the person as to who is in possession of the properties. Admittedly, it is the 1st defendant, who is in possession of the suit schedule properties and therefore the plaintiff filed the suit for recovery of possession.
24. The suspicious conduct of 2nd defendant and his people is evident from the loan transaction, Ex.B.1 with the Union Bank of India. Ramakrishnayya died on 21.1.1974 and part of the property was mortgaged with the Bank on 5.12.1975. As per the School records, the 1st defendant was born in 1958. At the time when loan transaction was contracted under Ex.B.1, the 1st defendant was a boy of 16 years age and he was a minor, and therefore he could not have contracted the mortgage loan from the Bank, basing upon the mortgage of the suit schedule property, that too after the death of Ramakrishnayya. It may be stated that even according to the defendants, the 1st defendant is not the only successor or owner of the suit schedule properties after the death of Ramakrishnayya even if adoption is held to be proved. The 1st plaintiff was very much alive and she is the wife of Ramakrishnayya. If not more, she will have equal rights along with the 1st defendant, even if he is treated as an adoptive son. By excluding PW.1, the suit schedule properties could not have been mortgaged in favour of the Bank. Instead of supporting the case, Ex.B.1 tends to show that immediately after the death of Ramakrishnayya, the scheming mind of 2nd defendant and his people started working in the direction of planting 1st defendant in the family of Ramakrishnayya and Manikyamma as an adopted son. The intention of the 2nd defendant is obvious in view of the fact that Ramakrishnayya having died issueless, his widow Manikyamma is only person to succeed to the properties of Ramakrishnayya. In order to see that the property is not enjoyed by Manikyamma in the manner in which she likes, the theory of adoption appears to have been brought to the fore.
25. The conclusion that can be drawn from the foregoing discussion is that the defendants failed to prove that the 1st defendant is the adopted son of Ramakrishnayya and Manikyamma/1st plaintiff and that he is entitled to succeed to the suit schedule properties. Point No.1 is answered accordingly.
26. Point.No.2: Probably unsure of establishing the factum and validity of adoption the defendants propounded a Will, said to have been executed by Ramakrishnayya, nine days prior to his death, which was registered at the Registrar Office of Inkollu, four days prior to his death. The contention of the defendant is that Ramakrishnayya has executed the Will Deed creating life interest in the suit schedule property in favour of his wife Ramakrishnayya/1st plaintiff and after her death, the entire property was to devolve on 1st defendant. If adoption is genuine, even without the Will, after the death of Manikyamma, 1st defendant will succeed to the entire properties of Ramakrishnayya and Manikyamma. Be that as it may, since the defendants have propounded the Will it is now to be seen how far they have succeeded in proving its execution and genuinity.
27. The original Will Deed has not been produced. It is contended that the original Will was given to Manikyamma/1st plaintiff. She denied the same. Non production of original Will adversely affects the case of the propounder. Ex.B.70 is the certified copy of the Will, and Ex.B.69 is the extract from the register maintained by the Registration office. Ramakrishnayya was an educated person and was a signatory. According to the defendants, the Will, Ex.B.70 was not signed by Ramakrishnayya, but his thumb-impression was obtained. This according to the defendants is due to the fact that the executant Ramakrishnayya was not able to sign due to shivering of hands, and therefore his thumb-impression was obtained. No satisfactory evidence on this aspect was produced. If the Will is said to have been executed by Ramakrishnayya, while he was in-patient in the Nursing Home of Dr.Darmanandan Rao, he was suffering with diabetes and other ailments. The doctor, who was treating the Ramakrishnayya has not been examined to speak about the mental and physical condition of Ramakrishnayya for executing the Will while he was inpatient. During the course of the treatment, within nine days after the alleged execution of the Will, Ramakrishnayya died. Therefore, in the absence of any cogent medical evidence, it is difficult to believe that the executant was in sound and disposing state of mind, when he is alleged to have executed the Will. The officer concerned from the Registration Department has not been examined. The evidence with regard to its registration is discrepant. When the attesting witness deposed that the registration was done on the date of the execution of the Will, but the record shows otherwise. The Will was executed on 16.01.1974 and was registered on 21.01.1974. Ramakrishnayya died on 25.01.1974. As per the recitals of Ex.B.70, Ramakrishnayya has personally presented the Will for registration before the Registrar Office on 21.01.1974. It is not the case of the defendants that the Will was registered by the concerned authorities by going over to the Hospital. When the person was not even able to put his signature, how could he go to the Registrar’s Office, four days prior to his death and present the Will for its registration that too when he was an in-patient in a Hospital. DW.2 is the scribe of the Will and DW.4 is the attestor. According DW.2, the Will was executed by Ramakrishnayya while he was undergoing treatment in the hospital of Dr.Dharmanandan Rao and was registered in the Sub-Registrar’s Office at Inkollu. DWs.3 and 4 deposed that the Will was executed and registered in the hospital itself but not in the Sub-Registrar’s Office.
28. PW.1 is the wife of testator Ramakrishnayya and it is nobody’s case that she was living away from her husband. As PW.1 she asserted that she was with her husband through his last breath. She denied that her husband Ramakrishnayya executed any Will while he was undergoing treatment in the Hospital of Dr.Dharmanandan Rao. There is no dispute with the proposition that where there are suspicious circumstances, the propounder of the Will has to explain them satisfactorily. In the instant case, there is suspicion about the genuineness of the execution of the Will since it admittedly do not contain his signature as he was a signatory. The testamentary capacity of the testator is another suspicious circumstance, which the propounder failed to dispel. The place of execution and its registration is also not established. Non production of the material witnesses to speak about the mental and physical condition of the testator to execute the Will just few days prior to his death is detrimental to the case of the propounder. According to the defendants, DW.4 was authorised by the testator to collect the original Will from Registration Office. DW.4 is the attestor of the Will. The Will being a sacrosanct document and its testator was in his senses, he would not have authorised an attestor-DW.4 to collect the Will from the Registration Office, more particularly when his own brother DW.3 and his alleged adopted son DW.1 was very much present, in addition to his own wife – Manikyamma in whose favour the bequest was made.
29. Another suspicious circumstance is about the treatment of the property alleged to have been bequeathed under the Will subsequent to the death of the testator Ramakrishnayya. Ex.B.1, as already stated, is the mortgage deed under which some of the suit schedule properties were mortgaged in favour of a Nationalised Bank. This was in December 1975. In the said document, it is not stated that 1st defendant has inherited the properties being mortgaged in pursuance to the Will, which was executed in January, 1974. If the execution of the Will was true and genuine in 1975 i.e., nearly nine years prior to the litigation started, when the defendants obtained loan, they would have certainly produced the original Will Deed before the Bank authorities in support of their authority of mortgaging the property. Even if the original Will was in the custody of Manikyamma/PW.1 since there was no love lost between them at that time, the same would have been filed before the Bank authorities. Even before the Revenue Authorities the said Will was not produced for obtaining the succession in respect of the properties covered there under.
30. Another important aspect is that originally, the 1st defendant filed O.S.No.69 of 1984, which was subsequently numbered as O.S.No.34 of 1988 in respect of the suit schedule property seeking an injunction against the 2nd plaintiff in O.S.No.38 of 1985. In that suit, which was filed nearly 10 years after the execution of the Will, the defendant has not claimed the suit property to be in his possession in pursuance to the Will, but, on the other hand, the 1st defendant relied only upon the adoption. The plaint filed by the 1st defendant in O.S.No.34 of 1988, where he was the plaintiff, do not disclose about there being any Will Deed executed by Ramakrishnayya in his favour. What could be gathered from the conduct of the defendants is that originally they thought of substantiating their claim on the basis of adoption and being uncertain about its proof, they have propounded the Will in the subsequent round of litigation.
31. In view of the foregoing discussion, it is held that the propounder absolutely failed to establish the execution of the Will Deed original of Ex.B.70 by Ramakrishnayya. This point is answered accordingly.
32. Point No.3: De hors Exs.A.2 and A.3, which are the gift deeds, executed by Manikyamma in favour of the 2nd plaintiff/PW.2 on 16.2.1984 and on 15.2.1984, the suit schedule properties would have devolved on the defendants they being the heirs of Ramakrishnayya after the death of Manikyamma. Manikyamma has executed the two registered gift deeds gifting the suit schedule properties in favour of PW.2, her sister’s daughter. This she did in exercise of her absolute rights over the suit schedule properties after the death of her husband Ramakrishnayya. On behalf of the plaintiffs, the 1st plaintiff as PW.1, the 2nd plaintiff as PW.2, and PWs.3 and 4 as attestors of Exs.A.2 and A.3 have been examined and they consistently speak about the execution of the Registered Gift Deeds in favour of PW.2. No circumstances are brought out to suspect the genuineness of Exs.A.2 and A.3 or the authority of Manikyamma to execute the said gift deeds. She having executed the same, has deposed about it as PW.1 and therefore it is held that the 2nd plaintiff is entitled to be declared as the owner of the suit schedule properties in pursuance to the gift deeds, Ex.A.2 and A.3.
33. Admittedly, the defendants being the agnates of Ramakrishnayya had been enjoying the suit schedule properties, whereas the suit schedule house was in possession and enjoyment of the 1st plaintiff/PW.1. In pursuance of Exs.A.2 and A.3 and after the death of Manikyamma, the 2nd plaintiff is entitled to recover possession. This point is answered accordingly.
34. Point No.4: The learned Subordinate Judge (Senior Civil Judge), Chirala, in his comprehensive and well considered Judgment has discussed each and every aspect minutely with reference to the oral and documentary evidence on record. The reasoning given by the learned trial Judge is logical and based on the legally acceptable evidence and the well established principles of law. Upon re-appraisal of the material on record, I see no reason to take any different view, other than that has been taken by the learned trial Judge. The Judgments under appeal do not suffer from any infirmities warranting interference. There are no merits in the appeal and they are liable to be dismissed. This point is answered accordingly.
35. In the result both the appeals fail and they are accordingly dismissed with costs.
M.S.K.Jaiswal, J Date: 18th July, 2014 Kv HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S. No. 2330 of 1993 And Tr.AS.No.752 of 2012 Common Judgment 18th July, 2014 Kv