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Penumarthi Venkatrayudu Vs. Penumarthi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 37 of 1971
Judge
Reported inAIR1973AP96
ActsHindu Law; Evidence Act, 1872 - Sections 115
AppellantPenumarthi Venkatrayudu
RespondentPenumarthi and ors.
Appellant AdvocateKanyaka Prasad, Adv.
Respondent AdvocateM. Rjasekara Reddy and ;R. Ramanadham, Advs.
Excerpt:
.....reversioner and positively contend that neither plaintiff nor he is reversioner - representative suit of reversioner cannot be exempted to include a person putting forth a claim adverse to plaintiff reversioner - appellant took position which allowed parties to agitate their claim and arrive at compromise - appellant is estopped from making contrary claim. - - in view of the above, the 1st defendant filed a petition for passing a final decree for partition and separate possession of his half share of the plaint schedule properties, which is resisted by the plaintiff as well as defendants 2 and 3, mainly on the ground that he having supported the adoption both of bodapati venkanna, the husband of the 3rd defendant, and the adoption of the 2nd defendant, he is estopped from pleading..........defendants 2 and 3 were reversioners and that issue was decided in favour of the plaintiff and the suit was decreed. the 3rd defendant filed a separate suit for his one-third share, wherein the 1st defendant contended that the suit was unnecessary in view of the previous decree, and the 3rd defendant, therefore, applied in execution for partition of his one-third share. it was held that it was not open to the 1st defendant to contend that the 3rd defendant was not entitled to ask for a decree for his share on payment of court-fees as in a partition decree.4. in natesa padayachi v. krishna padayachi, air 1939 mad 576, it was held that where the plaintiff asserts that both the plaintiff and the defendant were joint reversioners with equal rights, the later reversioner, who was impleaded as.....
Judgment:

1. In this second appeal by the 1st defendant in O. S. No. 476 of 1954 on the file of the first Additional District Munsif, Tanuku, the question that arises for consideration is whether the appellant is entitled to claim the benefit of a declaration made in favour of the plaintiff that he was reversioner to the estate of the last male-holder Penumarthi Panasayya.

2. One Penumarthi Ramanna filed a suit O. S. No. 476 of 1954, for partition and separate possession of 6 items of property claiming that he and the 1st defendant therein, who is now the appellant in this second appeal, were reversioners to the estate of the last male-holder Panasayya. That suit was resisted by one Rathamma , wife of Bodapati Venkanna, who was impleaded as 3rd defendant, and also by Veera Panasa Ramanna, who was impleaded as 2nd defendant therein, on the ground that Bodapati Venkanna, the husband of Rathamma, was adopted to Panasayya and the 2nd defendant was adopted to the said Bodapati Venkanna. The appellant herein, as the 1st defendant in that suit, admitted the adoptions pleaded by the 2nd and 3rd defendants. In other words, he contended that neither he nor the plaintiff was entitled to suit properties as reversioners. The trial Court upheld both the adoptions and dismissed the suit with respect to items 1 to 5 of the plaint schedule property but granted a decree in respect of item 6 in favour of the plaintiff and the 1st defendant therein upon the finding that item 6 belonged to Narayanamurthy, the brother of Panasayya. On appeal by the plaintiff, the appellate Court upheld the adoption of the 2nd defendant to Bodapati Venkanna but negatived the adoption of Bodapati himself, and on that basis held the plaintiff to be a reversioner entitled to a share in the plaint schedule properties, as pleaded by him. Defendants 2 and 3 therein preferred a second appeal, S. A. No. 115 of 1961, impleading the plaintiff and 1st defendant as respondents therein. The 1st defendant chose to remain ex-parte. The appeal itself was thereafter disposed of in terms of a compromise arrived at among the plaintiff and defendants 2 and 3, and the appeal not having been pressed against the 1st defendant. Under the compromise decree the plaintiff gave up his contention relating to the adoption of Bodapati Venkanna, the husband of the 3rd defendant and also with regard to the adoption of the 2nd defendant, and a declaration was granted that Bodapati Venkanna was the adopted son of Panasayya and that the said Venkanna adopted the 2nd defendant. With respect to certain items of property there was an agreement between the parties, with the details of which we are not concerned in the present appeal. So far as the 1st defendant, who was the 2nd respondent in the second appeal was concerned, the appeal was dismissed. In view of the above, the 1st defendant filed a petition for passing a final decree for partition and separate possession of his half share of the plaint schedule properties, which is resisted by the plaintiff as well as defendants 2 and 3, mainly on the ground that he having supported the adoption both of Bodapati Venkanna, the husband of the 3rd defendant, and the adoption of the 2nd defendant, he is estopped from pleading that he is a reversioner and claiming any relief in respect of any of the plaint schedule properties other than item 6, in respect of which there is at present no dispute in this second appeal. The trial Court dismissed the petition and the order of dismissal was on appeal.

3. Sri C. V. Kanyakaprasad, learned counsel for the appellant, contends that when the judgment of the first appellate Court in A. S. 64/1957, preferred against the judgment and decree in O. S. No. 476 of 1954, has become final so far as the 1st defendant is concerned and there is a declaration by that judgment that the plaintiff and the 1st defendant are reversioners to the estate of the last male-holder Panasayya, the subsequent compromise decree in S. A. 150/1961, which was dismissed so far as he was concerned, cannot affect the rights of the present appointment. That judgment is marked Ex. A-1. It is argued that the declaration made in that judgment, though made in an appeal preferred only by the plaintiff which was in a representative capacity would enure to the benefit of the entire body of reversioners. It is contended that the appellant, who is the other reversioner, though a defendant in the suit, is entitled to apply for partition and separate possession was placed upon a judgment of the Madras High Court in Appala Naidu v. Annam Naidu, AIR 1928 Mad 555. In that case in a suit by one of the three reversioners, where the other two were made defendants 2 and 3, for a declaration that all three were entitled to the suit property as reversioners and for partition and for recovery of one-third share of the suit property, issue No. 2 raised the question whether plaintiff and defendants 2 and 3 were reversioners and that issue was decided in favour of the plaintiff and the suit was decreed. The 3rd defendant filed a separate suit for his one-third share, wherein the 1st defendant contended that the suit was unnecessary in view of the previous decree, and the 3rd defendant, therefore, applied in execution for partition of his one-third share. It was held that it was not open to the 1st defendant to contend that the 3rd defendant was not entitled to ask for a decree for his share on payment of court-fees as in a partition decree.

4. In Natesa Padayachi v. Krishna Padayachi, AIR 1939 Mad 576, it was held that where the plaintiff asserts that both the plaintiff and the defendant were joint reversioners with equal rights, the later reversioner, who was impleaded as 28th defendant, was equally entitled along with the first reversioner to a decree for his share and that ' the mere fact that he is styled as defendant and not as plaintiff 2 is not of any practical importance whatever. '

5. To this proposition no exception can be taken. Ordinarily any suit filed by a reversioner would enure not only for his benefit of the entire body of reversioners. But on the question that falls for consideration in this appeal is not merely whether the appellant, who was the 1st defendant and a reversioner of equal decree as the plaintiff, is entitled to a decree for his half share but whether he is estopped from claiming that share for having taken all along the position that neither he nor the plaintiff was reversioner to the estate of the late Panasayya and whether he had not placed the plaintiff and defendants 2 and 3 in a position from which they could not go back, and allowed them to compromise the dispute as between themselves on the footing that so far as the appellant is concerned. He does not dispute the adoptions pleaded by the 2nd and 3rd defendants and that he does not claim any right, title, interest or share in items 1 to 5 of the plaint-schedule properties. The appellant even in his written statement had admitted the adoptions pleaded by the 2nd and 3rd defendants which, if upheld would non-suit the plaintiff and deny any share to him in items 1 to 5 of the plaint-schedule properties. Further, on the basis of his averment that the adoptions were true, which was upheld by the trial Court, the plaintiff and the 1st defendant were granted a decree with respect of item 6 of the plaint schedule property and the plaintiff got half share while the 1st defendant was granted the other half share. If the adoptions were not true, the 1st defendant, who is natural brother of the 2nd defendant, would have got only a 1/4th share and the 2nd defendant would have got a 1/4th share. No appeal was preferred by any of the parties, including the plaintiff and the 1st defendant, with respect to item 6 and the decree has become final.

6. The appeal was preferred by the plaintiff only with regard to items 1 to 5. No appeal was preferred by the 1st defendant evidently because he was supporting the adoptions. When the plaintiff succeeded in that appeal, A. S. No. 64/1957, there was no necessity for the 2nd and 3rd defendants to implead the defendant for the 1st defendant had all along supported the adoptions and disclaimed a share in items 1 to 5 of the plaint schedule property. The dispute was only between the plaintiff and defendants 2 and 3. Therefore, the parties proceeded to compromise that appeal on that footing and prayed for the dismissal of the appeal against the 1st defendant, appellant therein. If the 1st defendant had not represented by his pleading and his subsequent conduct, referred to above, that he was not claiming any share in the property in any capacity whatsoever, the parties would have proceeded to get their rights adjudicated in the second appeal on the basis of the record already before the Court, and would not have compromised in the manner they did. The 1st defendant who remained ex-parte and is clear from the copy of the judgment and decree in S. A. No. 115 of 1961. Having thus represented to the parties to the second appeal that he was not interested in claiming a share in any of the plaint schedule properties, it is not open to the appellant herein to turn round and claim a share on the strength of the decree passed in A. S. No. 64 of 1957 claiming that the decree therein, though made at the instance of the plaintiff, is one enuring to the benefit of the entire body of reversioners. While it is true that a reversioner's suit is a representative suit and after the reversion has opened, all the reversioners are entitled to shares in accordance with law, no reversioner can be deemed to represent another person who disclaims to be a reversioner and positively contends that neither the plaintiff nor he is a reversioner to the estate of someone else. A representative suit of a reversioner cannot be extended to such an extent as to represent a person putting forth a claim adverse to the plaintiff reversioner. In any case, the Court cannot countenance such a reversioner's claim who takes such inconsistent positions and allows the parties to agitate their rights and arrive at a compromise on the basis of that representation. The appellant, to my mind , is clearly estopped from making such a claim.

7. The second appeal therefore fails and is accordingly dismissed with costs. No leave.

8. Appeal dismissed.


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