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Pendyala Narasimham Vs. Pendyala Venkata Narasimha Rao - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 82 of 1958 with memo of Cross-objections and 346 of 1960 and C.M.P. No. 9202 of 1961
Judge
Reported inAIR1963AP78
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 7
AppellantPendyala Narasimham
RespondentPendyala Venkata Narasimha Rao
Appellant AdvocateB.V. Subramanyam, ;V. Balakoteswara Rao and ;N. Rajeswara Rao, Advs. in C.M.P. No. 9202 of 1961
Respondent AdvocateB.V. Subramanyam ;Balakoteswara Rao and ;N. Rajeswara Rao, Advs. in C.M.P. No. 9202 of 1961,
Excerpt:
.....of both parties subsists - lapse of time for filing suit for partition is immaterial in case of family partition - amendment can be allowed in fresh suit for possession of property - order 6 rule 17 confers wide power in court regarding amendment - aggrieved party can invoke it to get its portion of property in which his rights subsists. - - to deal with the first limb of the contention when the 1st defendant was approached by anantamma for consent to adopt the plaintiff, he objected to it en the grounds that the boy came from a poor family, that he was not a sagotra of the adoptive father, that the adoption would defeat his rights of inheritance and that he was willing to give his consent if the widow's choice fell upon his second son for the purpose. in these circumstances, the..........to amend the plaint by adding a relief of partition and separate possession of 1/2 share in the suit property in the alternative in order to obviate the difficulties arising out of the original frame of the suit.31. it is now well recognised that amendments should be allowed in order to effectively adjudicate upon the real issues arising in a case. it would be permissible to allow an amendment even if a fresh suit is barred on the amended claim if special circumstances exist. was pointed out in charan das v. amir khan, 47 ind app 255: (air 1921 pc 50) by the privy council:'that there was full power to make the amendment cannot be disputed and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him.....
Judgment:

Chandra Reddy, C.J.

1. This appeal is directed against the preliminary decree of the Subordinate judge Narasaraopet in O.S. No. 72 of 1953. The 1st defendant is the appellant. It arises our of an action laid by the respondent herein for recovering the properties in question for avoiding the alienations made by the 1st defendant and for an account of the management of the properties by the 1st defendant.

2 The facts material for the purpose of this appeal are briefly these. One Pendyala Narasimham had four sons by name Venkayya, Ramalingam, Punnaiah and Satyanarayana. The first of the sons pre-deceased his father. Narasiham died in 1928 leaving behind him three sons Ramalinga, Punnaiah and Satyanarayana. Ramalingam died in 1930 survived by his widow, Anantamma. His younger brothers died in 1934 and 1935 respectively issueless. In 1952, the widow of Ramalingam adopted the plaintiff. Shortly thereafter, the adopted boy required the 1st defendant by registered notice to deliver possession of all the properties belonging to his adoptive father and to render him an account of the management by the 1st defendant. As this demand was not complied with, the action giving rise to this appeal was laid.

3. The genealogical table given hereunder will be helpful in understanding the relationship of the parties.

BALI SETTI

|

________________________|________________________

| |

| |

Peda Gurivi Setti China Gurivi Setti

|

__________________________________________________________|_______________

| | | | |

| | | | |

Bali Setti Gurivi Setti Rudriah Parvatalu Papi Setti

| |

| |

Papi Setti Garatam Setti

| ______________________________________________________|

| | | |

Venkam Setti | | |

| Peri Setti Papi Setti Venkam Setti

| | |

Rami Setti | |

Nagi Setti Narasimbam

| |

| _____________________________|__________________

Peri Setti | | | |

| | | | |

| Venkiab Ramalingam Punniah Satyanarayana

Narasimbam |

(Appellant) |

adopted son P. V. Narasimha Rao

RAMISETTI

|

____________________________________________|_______________________________________

| | | |

| | | |

Seshiah Periah Pulliah Atchaiah

| |

________________|_________________ |

| | Gurumurthi

| | |

Nagaiah Seshiah ______|____________________

| | | |

______________|________________ | | |

| | | Muniah Subbarayndu Kotilingam

| | | | |

Lakshmiah China Periah | __|______________

| Lakshmiah Ananta-Ramiah | |

| | |

Sivaiah Siviah Pulliah

4. The chief averments in the plaint are these. At the time of the death of Narasimham, his three sons were young and inexperienced and consequently Perisetti the father of the 1st defendant, was brought into the family to look after its affairs on the understanding that he would be given something for his services. On the death of Perisetti, his son, the 1st defendant assumed management in 1938. The 1st defendant took full advantage of the situation, viz., that there was none in the family who was literate. He sold several items of properties of the family with a view to enrich himself and these alienations would not be effective as against the plaintiff. The 1st defendant was also called upon to render an account of his management.

5. To this suit were impleaded the alienees as defendants 2 to 56.

6. The claim of the plaintiff was resisted by the 1st defendant on the defences that he was not a stranger to the family, that his father and Narasimham constituted members of a joint Hindu family, to which the properties in dispute belonged and consequently all the properties survived to him on the demise of the sons of Narasimham, that the plaintiff's adoption, even If true, was not valid since the 1st defendant or his sons the only reversioners to the estate, did not give their consent to it, that the assent of persons who were not in any way related to the family was of no consequence, that in any event the alienations prior to the plaintiff's adoption could not be impugned and that there was no liability on his part to account for his management before 1952. It is unnecessary to refer to the written statements of the other defendants as the alienations in their favour are not in issue in this appeal.

7. The trial Court found that the plaintiff's adoption was valid, that late Narasimham and Perisetti constituted a joint family, that the properties, the subject-matter of the suit, belonged to the family and as such both were entitled to an equal share therein, that the plaintiff could not question the transfers effected by the 1st defendant before the adoption and that since there was no proof of any mismanagement by the 1st defendant, he was not liable to render an account of his management prior to the suit. In the result he has passed a preliminary decree for partition of the properties and allotment of one share to the plaintiff. He also directed that mesne proms should be enquired into in the final decree proceedings. Both the 1st defendant and the plaintiff brought appeals against that judgment as both of them were dissatisfied with it.

8. In the main appeal filed by the 1st defendant, the decree is assailed en two grounds (i) that the adoption of the plaintiff was invalid since it was not assented to by the nearest reversioners and (ii) that partition of the properties should not have been decreed as no such relief was claimed by the plaintiff.

9. On the first point, the argument is formulated thus: The dissent of the 1st defendant was based upon proper grounds and, in any event, the assent of the per-sons mentioned above would not validate the adoption as it was not shown conclusively that they were even distant agnates of Ramalingam. To deal with the first limb of the contention when the 1st defendant was approached by Anantamma for consent to adopt the plaintiff, he objected to it en the grounds that the boy came from a poor family, that he was not a sagotra of the adoptive father, that the adoption would defeat his rights of inheritance and that he was willing to give his consent if the widow's choice fell upon his second son for the purpose. None of these grounds is tenable.

The poverty of a boy would not disentitle him to be adopted. Nor is it essential for a valid adoption that the toy should be a sagotra of the adoptive father. It is not a relevant consideration that the reversionary right of the sapindas would be prejudiced by the adoption. It was not also obligatory on the widow to adopt the 1st defendant's second son especially when he was subject to epileptic fits. The evidence on record discloses that he was suffering from such fits. Therefore, the refusal of the 1st defendant to consent to the adoption of the plaintiff was improper and it was open to the widow to secure the consent of the other remote agnates for the adoption. The only requirement in this regard is that the widow should consult the other reversioners if available however remote they may be.

10-11. This takes us to the question whether the persons, whose consent was obtained by the widow, are proved to be the remote agnates of Ramalingam.

12. At the outset, it should be remembered that the 1st defendant's case was that besides himself & his sons, there were no other relations of Ramalingam, near or distant. Therefore, it could not be contended that even if the 1st defendant improperly withheld his assent to the adoption, the widow should have sought the consent of other agnates; nor is it even established that there were relations of the adoptive father other than those who authorised the widow to adopt.

13. The assenting persons are examined as P.W. 7 (Perayya), P.W. 3 (Anantaramayya) and P.W. 2 (Pulliah), Sivayya, the other consenting party having died between the date of the adoption and the trial of the suit. Another Sivayya, son of Lakshmiah, said to be a brother of P.W. 7 had replied to a notice issued by the widow that he also consented for the adoption.

14. The genealogical table extracted above was prepared by P.W.1, admittedly the family guru, with the aid of Ex.A. 2. This statement would indicate the relationship of P.Ws. 2,3 and 7 and that of Sivayya with Ramalingam. Ex. A-2 was prepared by P.W. 1 while Ex. A-1 which referred to the earlier genealogy not set out above was prepared by his forefathers.

15. It is in the evidence of P. W. 1 that he compiled Ex.A. 2 with reference to Ex.A. 1 (written on palmyra leaves) and from another white paper book. This evidence of P.W. 1 read with Exs.A. 1 and A. 2 and the genealogical table it accepted, would affirmatively establish that P.Ws. 2,3,7 and Sivayya were the agnates of Ramalingam. P.W.1 was equally interested in both the parties, in that he was the guru of the whole family and he had no axe to grind by preferring one set of his disciples to the other. It is true ho stated that the name of P.W.7 is not to be found in Ex.A. 2 but then it was noted in his book. This would not detract from the value to be attached to the deposition of this witness. It was elicited from him in cross-examination on behalf of the 1st defendant that Narasimham and Perisetti were living together as members of a joint family, that the 1st defendant and Narasimham had a common ancestor Garitam Setti, that they were all joint family members and that the 1st defendant's father as also the 1st defendant were his disciples which demonstrates that he was acquainted with the family history of the parties. He is a respectable person and he is not shown to be interested in the plaintiff. In these circumstances, there are no justifiable grounds for discrediting him. We think his testimony could be safely acted upon.

16. The evidence of P. Ws. 2, 3 and 7 is to the effect that they were related to Ramlingam as proved by the genealogy. In this appeal, the main attack was concentrated on the statement of P. W. 7. It is argued that the answers in the cross-examination as also in the re-examination would reveal that his ancestry could not be traced to any of the descendants of China Gurivi Setti much less to Rami Setti. There is some force in this criticism of the learned Counsel. But the appellant was not able to say as to which family P.W. 7 belonged; that apart, P.W. 7 is supported to a large extent by P. W. 1 on this aspect of the case. It is obviously for this reason that the trial Court chose to accept the testimony of P. W. 7, Even if we disregard the evidence of this witness and as a necessary corollary his consent, that would not materially affect the validity of the adoption as there is Still the consent of P. W. 2, p. W. 3, Sivayya and others. The learned Counsel could not successfully impeach the testimony of P. Ws. 2 & 3. Their names find a place in Ex. A. 2. Their depositions received ample corroboration front P. W. 1. Our attention was not drawn to any infirmity which renders their evidence unacceptable. The trial Judge who saw these witnesses, watched their demeanour and heard their evidence thought fit to place reliance on It. We can find no justification to form a different estimate of it and to come to a contrary conclusion in this behalf. There are, therefore, no grounds to disturb its finding on this part of the case. It follows that the decision of the trial Court on this issue has to be affirmed.

17. We shall next deal with the point relating to the frame of the suit. What is urged in this regard is that the plaint proceed on the footing that the properties exclusively belong to the 1st defendant and that he did not concede the right of the plaintiff to a share in the property. In such a suit all the issues pertinent to a partition action could not be raised as they would be foreign to it. In these circumstances, the learned Counsel contends that in a suit like the present, it was not competent for the trial Court to grant a decree for partition.

18. In support of this proposition, reliance is placed on some decisions of the Madras High Court. In Vaithilingam Mudali v. Natesa Mudali, ILR 37 Mad 529: (AIR 1914 Mad 460) it was observed by a Bench of that Court consisting of Arnold White, C. J. and Benson J. that the District Judge was right in holding that the suit which they had to deal with was one in ejectment and could not be properly converted into a suit for partition so as to give plaintiffs a decree for 2/3 of the plaint property.

19. It was ruled in Samba Sadasiva Devara v. Papayya, 21 Ind Cas 737 (Mad) by Arnold White C. J. and Tyabji J. that a suit based on adaption could not be treated as a suit for partition of undivided family property.

20. To a like effect is the decision of Yahya Ali J. in Seshacharyulu v. Lakshminarayanacharyulu, 1945-2 Mad LJ 542: (AIR 1946 Mad 105).

21. We are not persuaded that any of these rulings would assist the appellant. In the first of the cases, the plaintiffs claimed the property as the reversionary heirs of their brother and the suit was to recover it from the defendant, who is alleged to have trespassed upon the property. This was resisted by the defendant on alternative grounds (i) that the property in dispute was the self-acquisition of his adoptive father having been purchased benami in the name of the deceased brother in whose name the property stood and that in any event he was entitled to a share as his father was another brother of the owner of the property that was the subject matter of the suit. While disallowing the first plea, the courts below found that the defendant's father had not lost his tights in his natural family as his adoption was held to be invalid and consequently the defendant was entitled to a 1/3 share of the property. In this view, they decided that the plaintiff could not recover even the remaining 2/3 share in that suit as it was framed as one in the ejectment against a trespasser and as it could not be converted into a suit for partition. The reason for this decision was that there might be other property which would have to be brought into the hotchpot if the plaintiff should sue for partition and that the right of the plaintiff to obtain partition in a suit properly framed for the purpose was apparently not yet barred and they must be left to that remedy. It is seen that it was not laid down as a general proposition that a suit based upon exclusive title could not be converted into a suit for partition.

22. Likewise, 21 Ind Cas 737 (Mad.) does not contain a universal rule that a suit founded on exclusive title could not be treated as a suit for partition, the basis of that suit was the adoption of the plaintiff. Since the plaintiff could not establish that he was adopted, the suit was dismissed. In the appeal against the judgment, it was urged that even in the view that there was no adoption, the plaintiff was entitled to ask the Court to treat it as a suit for partition of the family properties on the ground that they were family properties. This request was negatived by the Court on two grounds that a man should not be allowed to turn one suit into another when he found that the conclusions of the court were against him on the claim as set up in the original suit and that the suit in the first instance rested on adoption while in the second instance it rested on the status of the family being a divided family and the property in question being the self-acquisition of the adoptive father, whereas the prayer asked for in the High Court proceeded on the assumption that the property sought to be partitioned was undivided family property. It is seen, the decision of that case turned entirely upon the facts of that case.

23. In 1945-2 Mad LJ 542: (AIR 1946 Mad 105) Justice Yahya Ali found that if the amendment was for converting a suit for possession of certain items of land after evicting defendants 1 and 2 and their representatives therefrom into a suit for partition, it would be altering the complexion of the case completely in that it alters the cause of action and changes the subject-matter of the suit. The District Munsif of Masulipatam before whom the suit was filed refused to amend the plaint and the aggrieved plaintiff carried the matter in revision to the High Court. It is in confirming the order of the District Munsif that the learned Judge made those observations. It was not laid down in that case that under no circumstances was it permissible for a Court to treat a suit for recovery of possession of property as exclusively belonging to the plaintiff as a suit for partition.

24. On the other hand, there are decisions from which the principle emerges that a suit for ejectment could be regarded as one for partition if the plaintiff was found entitled to it even in the absence of a alternative claim.

25. This is the doctrine of Viswanathaswamy Naicker v. Kammu Ammal, 21 Ind Cas 724 (Mad.) The principle was enunciated by a Bench of the Madras High Court that the plaintiff could be given a decree for a share of a part of the property, if he was found entitled to it even though the suit was for ejectment, and the plaintiff did not ask for the alternative relief of partition.

26. The view taken by Horwill J. in Adhilakshmi Ammal v. Nallasivan Pillai, AIR 1944 Mad 530 is in accordance with the above rule. The learned Judge held that the plaintiff could be given a share in the property although he asked for the whole of it.

27. In Rama Naickan v. Muthayammal, 21 Mad LJ 997 where co-widow sought to recover possession of the properties from her husband's brother in her exclusive right, it was found that the 1st defendant had acquired the right of the 2nd defendant, the other widow, under some arrangement and consequently the plaintiff was entitled only to a decree for half share of the properties. Yet the suit was decreed for division of the property by a Bench consisting of Abdur Rahim and Sundara Aiyar JJ.

28. This principle underlies Ali Raza Khan v. Nawazish Ali Khan, AIR 1943 Oudh 243. That was a suit for possession claiming sole and exclusive rights over certain property. But it was actually found that the plaintiff could claim only 1/3 share in the property. The plaintiff, though he had an opportunity of amending the plaint did not do so. Nevertheless, the High Court in an appeal from a judgment of a single Judge on the original side granted him a personal decree for a share of the property on the basis of his being a co-owner observing that it was rot illegal or unjust to give such a relief as such a decree would not alter the frame of the suit so as to cause any hardship or injustice to the defendant.

29. What emerges from these rulings is that evenwithout an amendment in a suit for possession of certainproperty with sole and exclusive rights therein, a decreefor partition could be granted notwithstanding the absence of an alternative prayer provided such a reliefwould not result in much prejudice or injustice to theother side.

30. During the hearing of the appeal, the plaintiff respondent applied for permission to amend the plaint by adding a relief of partition and separate possession of 1/2 share in the suit property in the alternative in order to obviate the difficulties arising out of the original frame of the suit.

31. It is now well recognised that amendments should be allowed in order to effectively adjudicate upon the real issues arising in a case. It would be permissible to allow an amendment even if a fresh suit is barred on the amended claim if special circumstances exist. was pointed out in Charan Das v. Amir Khan, 47 Ind App 255: (AIR 1921 PC 50) by the Privy Council:

'That there was full power to make the amendment cannot be disputed and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case.'

That being the legal position, there cannot be any insuperable difficulty to allow a plaintiff to amend the plaint seeking an alternative relief in furtherance of Justice and if it does not involve the other side in real Hardship, in Sultan Abdul Kadir v. Mohammed Esuf Rowther, AIR 1926 Mad 909 in a suit which was based on the ownership of the property and which was bound to fail because of the result of previous litigation, the plaintiff was allowed to amend the plaint asking for partition cases upon the first claim of co-ownership. The learned Judges remarked that since a suit for partition, if properly constituted would not lie, the proper course for the court was lo permit the plaintiff to rectify the mistaken course on which he has embarked.

32. In Leach and Co. Ltd. v. Jardime Skinner and Co., (S) : [1957]1SCR438 the Supreme Court permitted amendment of the plaint by raising an alternative claim for damages for breach of contract for non-delivery of the goods when the claim of the plaintiff for damages on the footing of conversion failed. Said their Lordships in the course of the judgment:

'It is no doubt true that Courts would as a rule decline to allow amendment, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the court to order it, if that is required in the interests of justice.'

33. It is seen that Order 6 Rule 17 confers wide powers on a court and though it should be exercised with great care and caution, even in cases where the defendant had acquired a right by lapse of time, it would be permissible for a court to allow an amendment if the circumstances and justice require it. As pointed out by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 all rules of courts are nothing but provisions intended to secure the proper administration of jus-ice, that they should be made to serve that purpose and that powers of amendment should be liberally exercised. A party should be permitted to invoke Order 6 Rule 17 it ubstantial matters which constitute the title of all the parties are touched by the issues and have been fully put n evidence and form the main subject of discussion in the court, though such a claim might not be based upon the pleadings. When a party claims certain property on the score of exclusive title therein residing in him there is no reason why he should not be permitted to ask for a portion thereof if it is based on the same title and if the. ground upon which he is entitled to a lesser relief is not inconsistent with the case set up by him in the original plaint or Would lead to the determination of the issues which would embarrass him.

Judged on the light of these principles, we think that this is a fit case for complying with the request of the plaintiff because his claim to a half share in the property is traceable to his status as the adopted son of Ramalingam. The basis of the claim, namely, the adoption remains' the same and the present request would not involve, a change of cause of action or variation in the nature of the suit All the necessary allegations are contained in the original plaint and the parties that would be interested in a partition action are before the court. It is not suggested that there is any one else who would have to be impleaded as a party if it is converted into a suit for partition. Nor is it contended that there are properties other than those, which are the subject-matter of the litigation which should be included if the suit were to be treated as one for partition. It is not denied that he is entitled to an equal share with the appellant as the adopted son of Ramalingam.

The only reason which the Counsel could urge for not allowing the amendment is that, if the original suit was for partition, his client could have requested the Court to make a provision for discharging the debts due by the family. That objection is easily disposed of. The Counsel for plaintiff had specifically stated that his client was willing to bear his share of the binding debts; in other words, he is prepared to pay his share of such of the liabilities as are proved to have been incurred by the 1st defendant for purposes binding upon him also. In such a situation, it would be meaningless to drive the plaintiff to another suit to obtain the same relief. Such a direction would entail great hardship and avoidable Inconvenience and expense. That would be encouraging unnecessary litigation. We, therefore, allow the amendment and uphold the decree of the trial Court declaring the right of the plaintiff to a half share in the property, the subject matter of the suit and directing partition and separate possession of the plaintiff's share to him.

In view of the willingness of the plaintiff to meet his share of the liabilities, without there being any necessity for the 1st defendant to file a suit against the plaintiff for contribution and to avoid complication, it was agreed between the parties that each of them would file an undertaking into court not to alienate his share without the permission of the Court obtained after notice to the other side till the discharge of the debts that may be found to be binding on the plaintiff also. (The rest of the judgment is not material for this report--Ed.) Order accordingly.


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