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Dugginallakshmana Rao Vs. Duggina Kakshmi Katamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 262, 263, 264 of 1969
Judge
Reported inAIR1973AP302
ActsHindu Law; Hindu Adoptions and Maintenance Act, 1956 - Sections 23
AppellantDugginallakshmana Rao
RespondentDuggina Kakshmi Katamma and ors.
Excerpt:
.....as a result of adoption of plaintiff he divests property got by adoptive mother absolutely under ante-adoption agreement entered into at time of previous adoption - when adoptive mother has become absolute owner of property though it originally belonged to her husband, subsequent adoption will not have effect of divesting said property - adopted son to divest property of his adoptive father from hands of adoptive mother if only she is holding it as limited owner but not under as absolute owner - validity of ante-adoption agreement not to be questioned now as plaintiff remained quiet for ten years after becoming major. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer -..........the 1st defendant herein. she adopted one raghunadha rao on 16-6-1933 as per law and in an ante-adoption agreement entered into between lakshmikanthamma and raghunadharao's natural father, she was given 7 acres of her husband's property with absolute rights leaving the rest of the property i.e., about 21 acres to the adopted son. raghunadharao died on 24-4-1949 long after he became a major. thereupon lakshmikanthamma adopted on 8-8-1949 one lakshmana rao the present plaintiff, who is no other than the natural younger brother of the deceased raghunadha rao. lakshmana rao became a major in 1955, but he has chosen to file the suit in 1965 against his adoptive mother, claiming items 1 to 6 of the plaint a - schedule which were given to the adoptive mother under the ante-adoption.....
Judgment:

M. Krishna Rao, J.

1. A.S.No. 262 of 1969:- This appeal was filed by the plaintiff whose suit was dismissed by the learned Additional District Judge, Eluru. He filed the suit O.S.No. 41 of 1966 on 11-10-1965 for recovery of possession of two sets of immovable properties viz., Items 1 to 6 and Items 7 to 19 of the plaint A- Schedule from the 1st defendant. Defendants 2 to 6 are settlees of the properties from the 1st defendant.

2. The dispute has arisen under the following circumstances:- There was one Duggina Ratnam, who died in 1905 leaving his widow Lakshmikanthamma the 1st defendant herein. She adopted one Raghunadha Rao on 16-6-1933 as per law and in an ante-adoption agreement entered into between Lakshmikanthamma and Raghunadharao's natural father, she was given 7 acres of her husband's property with absolute rights leaving the rest of the property i.e., about 21 acres to the adopted son. Raghunadharao died on 24-4-1949 long after he became a major. Thereupon Lakshmikanthamma adopted on 8-8-1949 one Lakshmana Rao the present plaintiff, who is no other than the natural younger brother of the deceased Raghunadha Rao. Lakshmana Rao became a major in 1955, but he has chosen to file the suit in 1965 against his adoptive mother, claiming Items 1 to 6 of the plaint A - Schedule which were given to the adoptive mother under the ante-adoption agreement of 1933 and also Items 7 to 19 of the plaint A - Schedule which were all purchased by the adoptive mother Lakshmikanthamma in her own name during the years 1929 to 1946. So far as Items 1 to 6 are concerned, the plaintiff's case is that he is not bound by the ante-adoption agreement and that he is entitled to the properties by divesting the widow immediately on the adoption. As regards Items 7 to 19 his case is that the adoptive mother purchased these properties with the income of the joint family property and that they really constitute an accretion to the joint family. The suit was resisted by the 1st defendant on the ground that so far as Items 1 to 6 are concerned the ante-adoption agreement was ratified by Raghunadha Rao after he became a major and also by the plaintiff after he became a major and that in any event the suit is barred by adverse possession and limitation. As regards Items 7 to 19 she contended that the properties were purchased with her own money given by her father, that the plaintiff has no right to claim the same as an accretion to the joint family estate and that the suit is barred by time. The Court below up held the defence pleas and dismissed the suit. Aggrieved by the said judgment the plaintiff filed this appeal.

3. We will first take up items 1 to 6 of the plaint A-Schedule for consideration. The learned counsel for the appellant Shri. J.V.Suryanarayana Rao contended that the plaintiff, who is the second adopted son, is not bound by the ante-adoption agreement entered into at the time of the first adoption of Raghunadha Rao and that under law, as a result of the adoption, he has divested the widow of these properties. In support of this contention the learned counsel placed reliance upon Laxmibai v. Keshava Rao AIR 1941 Bom 193. In the said case the widow of one of the brothers in a joint family adopted a boy during her husband's lifetime. Her husband made a will authorising her to manage the properties on behalf of the adopted son and to enjoy half the income in case of estrangement between them. Subsequently a suit for partition was brought by a person who was subsequently adopted by the widow of another brother. It was held that the plaintiff is entitled to the share of his deceased father and that the arrangement made by the sole surviving coparcener under the will does not bind him. This is not really a case of an ante-adoption agreement. But nevertheless, the Court cited the observations of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar , ILR 50 Mad 508 = (AIR 1927 PC 139) Viz., that an ante-adoption agreement is an arrangement which merely regulates the rights of the adoptive mother vis-a-vis the adopted son and held that the second adopted son in the family is entitled to his share notwithstanding the previous arrangements made by the sole surviving coparcener. In any event that was a case where no absolute title was conferred upon the widow. We do not, therefore, derive any assistance from this decision. In ILR 50 Mad 508 = (AIR 1927 PC 139) it was ruled by the Privy Council that an arrangement between the adoptive mother and the adopted boy represented by his natural father making some provision for the adoptive mother by way of a life estate for the protection of her interests is sanctioned by custom and that it is valid provided it is fair and reasonable in the interests of both the parties. The learned counsel for the appellant laid considerable stress upon the following observation of the Privy Council in the said case viz., that the agreement is intended to regulate the rights of the adoptive mother and the adopted son. It was argued on the basis of this observation that the adoptive mother should hold the estate only so long as the particular adopted boy is alive and that it is not binding on anyone else after her death. We are unable to infer such a principle from his observation. In the context it merely means that the agreement should benefit only the widow and not a stranger. The principle enunciated in the above decision of the Privy Council was extended by the Madras High Court in Raju v. Nagammal, 56 Mad LJ 41 = (AIR 1928 Mad 1289) in which an ante-adoption agreement conferring absolute title on the adoptive mother with respect to a reasonable fraction of the entire estate, was held to be valid. it was held that after the death of the adoptive mother property given to her absolutely under the ante-adoption agreement would pass to her successors and not to the adopted son. It is now too late in the day to contend that an absolute estate cannot be created in favour of the adoptive mother under an ante-adoption agreement. The above decision of the Madras High Court has been followed subsequently in Madras and also in Andhra Pradesh (see Purnanandha Sastri v. Purnanandam, : AIR1961AP435 )

4. The question which remains for consideration is whether as a result of the adoption of the plaintiff he divests the property got by the adoptive mother absolutely under the ante-adoption agreement entered into at the time of the previous adoption of Raghunadha Rao. So far as divestiture is concerned, the law in Mayne's Hindu Law 11th Edition is as follows:- It is now settled law that the adoption dates back to the date of the adoptive father's death so as to leave no hiatus in the succession. But the right of the adopted boy really arises on the date of the adoption in the sense that the date of the adoption in the sense that he is bound by all such acts of the widow as would bind the heirs of the husband after her. (See Vaidyanatha Sastry v. Savitri Ammal, ILR 41 Mad 75 = (AIR 1918 Mad 469) ). The adopted son is not necessarily bound by all the dealings with the estate between the death of his adoptive father and his own adoption. But the validity of these acts would have to be judged with reference to their own character and the nature of the estate held by the person whom he supersedes. If the widow creates any encumbrances or makes any alienations which go beyond her legal powers the son can set them aside at once, but if they are within her powers he is as much bound by them as any other reversioner would be. He is also bound even though they are not fully within her powers, provided she obtained the consent of the persons who, at the time of the alienation, were the next heirs, and competent to give validity to the transaction (See Mayne on Hindu Law, 11th Edition, pages 263 and 264). Though an ante-adoption agreement does not involve an alienation by the widow of her husband's by the widow of her husband's property, the same principle with reference to alienations may be applied to the present case where a part of the property of the adoptive father ceased to be his estate as a result of a bargain between the widow and the natural father. In the present case the validity of the ante-adoption agreement of 1933 has not been challenged before me on the ground of unreasonableness or unfairness. The said transaction was affirmed by the previous adopted son Raghunadha Rao after he became a major by not questioning it till he died in 1949. Under those circumstances when the widow has become the absolute owner of the property though it originally belonged to her husband, a subsequent adoption will not have the effect of divesting the said property. An adopted son can divest property of his adoptive father from the hands of the adoptive mother if only she is holding it as a limited owner but not under an absolute title. The only right of the adopted son like an after-born son is to question the transaction if it is not otherwise valid. But in the present case the validity of the transaction as an ante-adoption agreement has not been questioned before us. The plaintiff is also barred from questioning the same as he has not done so till nearly ten years after he became a major in 1955. It was a transaction of 1933 which was acquiesced in by the previous adopted son who died in 1949. The Court below relied upon the conduct of the parties as constituting ratification or acquiescence in the adoptive mother continuing to hold the said property given to her under the ante-adoption agreement. It may be noted that when the adoption deed was executed with reference to the plaintiff's adoption a list of the property of the adoptive father was annexed to the adoption deed omitting the properties already given to the adoptive mother under the previous ante-adoption agreement, as the natural father is the same for both the boys. It may be taken that even at the time of the second adoption there was virtually an ante-adoption agreement though by way of ratification permitting the adoptive mother to have the same property which she got under the previous ante-adoption agreement. The plaintiff's claim for the said property is also action accrued to him in 1949 when he was a minor. Even after the expiry of 12 years period in 1961, he did not file any suit till any view of the matter, the plaintiff cannot lay any claim to the property shown as Items 1 to 6 of the plaint A-Schedule.

5. We will now refer to the plaintiff's claim for Items 7 to 19 of the plaint A-Schedule. These are properties admittedly purchased by the widow in her own name. The onus rests upon the plaintiff to show that they were purchased with the income of the property belonging to the plaintiff. The plaintiff is unable to place any material about the exact income of the estate when the widow made the first purchase in the 1929 for Rs. 3,885/-. All the other properties were purchased subsequently from time to time and the income of each property so purchased may have been sufficient for the subsequent acquisitions. The adoptive mother also stated that she was given money by her father. The Court below accepted her case and we do not see any ground for interfering with the finding of the Court below. She also enjoyed the property in her own right for over 12 years.

6. In the result, this appeal is dismissed with costs of the 1st respondent (1st defendant) In parting we cannot avoid observing the second adopted son was ill-advised in launching this vexations litigation against his adoptive mother.

A.S.No. 263 of 1969:-

7. This appeal is filed by the plaintiff against the dismissal of her suit O.S.NO. 40 of 1966 on the file of the District Judge, Eluru. She is the wife of Lakshmana Rao the adopted son of the Lakshmikanthamma. The suit is for recovery of certain silvery articles etc., or their value which are said to he left in the house of the adoptive mother. The Trial Court held that there was no proof of the plaint allegations and accordingly dismissed the suit.. Even before us, no tangible evidence has been placed in order to substantiate the claim for these jewels. This appeal, is therefore, dismissed with costs.

A.S.No. 264 of 1969:-

8. This appeal is filed by the 1st defendant in O.S.No. 55 of 1965 in so far as he is aggrieved by the decree of the learned District Judge, Eluru. The suit was filed by the adoptive mother Lakshmikanthamma against the adopted son Lakshmana Rao for recovery of certain lands situate in Kovvali village and in the alternative for recovery of separate maintenance. The Court below rejected the claim for the lands, but granted a decree for maintenance at the rate of Rs. 125/- per month. No appeal has been field by the adoptive mother as a against the dismissal of the claim for recovery of the lands. The adopted son filed this appeal challenging the decree for maintenance. The main point raised on behalf of the appellant is that the adoptive mother was given 7 acres of land absolutely, under the ante-adoption agreement and that she also purchased about 10 acres of land in her own name and that she wasted away the whole property by settling the same in favour of her near relatives, though, of course, she bargained for delivery of 60 bags of paddy in her favour towards her maintenance from the settlees. The learned counsel for the appellant placed reliance upon a ruling in Srinivasa Ayyar v. Ammani Ammal, 61 Mad LJ 381 = (AIR 1931 Mad 668), in which it was held that a widow who dissipated joint family property given to her for maintenance, cannot again sue for maintenance. We do not agree that the said case has any bearing on the present question. This is not a case where the maintenance bolder was in possession of any joint family property. All the property she had was her own absolute property and the fact that the said properties are sold away, is of no consequence. Even assuming that she did not dispose of those properties, she is still entitled under law, as it stood before the Hindu Adoptions and Maintenance Act of 1956, to ask for separate maintenance. It is only after the introduction of the new provisions in the Hindu Maintenance Act that the Courts are required to take into account the separate property of the person seeking maintenance. Hence, it is not open to this Court to consider the income of the separate property owned by the adoptive mother, even if the property still continued in her own hands. But with respect to the quantum of maintenance we think having regard to the age of the plaintiff and her reasonable needs and standard of life, a sum of Rs. 100/- per month would be reasonable. We, therefore, modify the decree of the Court by awarding maintenance at the rate of Rs. 100/- per month instead of Rs. 125/- per month. This modification will come into operation only from the date of this decree.

9. This appeal is, therefore,. Partly allowed. The parties are directed to bear their own costs in this appeal. Cross objections not pressed dismissed. No costs.

10. Order accordingly.


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