1. This is an appeal directed by the plaintiffagainst the judgment and decree of the Subordinate Judge of Vijayavada dismissing his suitfor recovery of possession of the properties mentioned in A to D schedules attached to the plaintand for mesne profits. The plaintiffs case is thatall the suit properties belonged to MakkapatiSuryaprakasam, who died in 1886, and that uponhis death, Makkapati Lakshmidevamma succeededto those properties.
The plaintiff was adopted by Lakshmidevamma on 30-3-1939- He attained majority on 9-8-1950 and he filed the suit for recovery of the properties on 7-8-1953. So far as A and B schedule properties are concerned, he contended that the ante-adoption agreement entered into by his natural father with the widow Lakshmidevamma on 25-3-1939 was not valid and binding and that he Was consequently entitled to recover those properties from defendants 1, 4 and 5 with mesne profits. As regards C and D schedule properties, his contention was that the gift deed executed by Lakshmidevamma on 18-9-1895 was not binding on him. He sought to recover those properties from defendants 6 to 17 who are the alienees from the donees under the gift deed.
Defendants 1 to 5 contended that the ante-adoption agreement entered into between the natural father of the plaintiff and the widow Lakshmidevamma was valid and binding inasmuch as a reasonable provision for maintenance was made of the properties specified in A and B schedules for her maintenance. Defendants 6 to 17 pleaded that even prior to the execution of the gift deed dated 18-9-1895, Chivukula Venkataramanayya and Chivukula Subbarayudu were under an oral gift put in possession of the properties specified in schedules C and D by Lakshmidevamma's husband and father-in-law and that the widow had formally executed the deed of gift to give effect to the oral gift of her husband and father-in-law.
Their further contention was that the deed of gift dated 18-9-1895 should be viewed as evidencing a bona fide settlement of family disputes or a family arrangement. They further pleaded that the compromises arrived at in O. S. No, 251 of 1907 on the file of the Court of the District Munsiff, Gudivada between Makkapati Chinna Venkatachalam, Makkapati Lakshmidevamma, Chivukula Venkataramanayya and Subbarayudu was a bona fide settlement of family disputes and that the plaintiff is not entitled to go behind the compromise decree. Defendants 15 to 17 raised a further contention that the properties mentioned in D schedule did not belong to Makkapati Surya-prakasam but belong to his mother Makkapati Adilakshmamma and that the plaintiff was not entitled to recover those properties.
2. The Subordinate Judge of Vijayavada held, in an elaborate judgment covering 25 printed pages, that the ante-adoption agreement was valid and binding on the plaintiff. He further found that the predecessors of defendants 6 to 17, i-e., Chivukula Venkataramanayya and Subbarayudu were in possession of C and D schedule properties as a result of the oral gift made by Makkapati Suryaprakasam and his father Chinna Narasimha Josyulu. He also accepted the contention of defendants 6 to 17 that the document might be viewed as a settlement of bona fide disputes or as a family arrangement.
He also found that the plaintiff has not satisfactorily established that the D schedule properties belonged to Makkapati Suryaprakasam. Incidentally, he held that both Suryaprakasam and his father constituted members of a joint family and that on the death of Suryaprakasam the family properties survived to his father Chinna Narasimha Josyulu. In the result, he dismissed the plaintiffs suit with costs. The plaintiff has consequently preferred the appeal to this Court.
3. The learned Advocate-General appearing on behalf of the appellant raised the following contentions:
1. that the ante-adoption arrangement entered into between Lakshmidevamma and the plaintiff's natural father on 25-3-1939 and marked as Ex. B. 2 is not valid and binding upon the plaintiff;
2. that there is no evidence that an oral gift was made by Makkapati Suryaprakasam and his father Chinna Narasimha Josyulu in favour of Chivukula, Venkataramanayya and his brother Subbarayudu;
3. that the gift deed executed by Lakshmidevamma on 18-9-1895 was not valid and binding inasmuch as it did not evidence a bona fide settlement of family disputes or a family arrangement;
4. that Suryaprakasam and Chinna Narasimha Josyulu did not constitute members of an undivided family and that the properties reconveyed by Kumaraswami Sastri to Suryaprakasam under Ex. A-15 dated 23-3-1886 belonged to him exclusively and that they devolved upon his widow Lakshmidevamma on his death; and
5. that the properties mentioned in schedule D belonged to Makkapati Suryaprakasam and not to his mother Adilakshmamma.
The learned Advocate for the respondents raised further contention which was set out in the written statements of defendants 10 to 12 and 15 to 17, viz. that the compromise decree in O. S. No. 251 of 1907 on the the of the District Munsif's Court, Gudivada, marked as Exhibit B-26, was valid and binding upon the plaintiff inasmuch as it evidenced a bona fide settlement of family disputes. We shall now deal with the contentions referred to supra in seriatim.
4. When the plaintiff was taken in adoption on 30-3-1939, his natural father Makkapati Venkataratnam entered into an agreement dated 25-3-1939, marked as Exhibit B-2. Under the terms of that agreement, Lakshmidevamma was given towards her maintenance the properties mentioned in A and B schedules attached to the plaint. A schedule comprises 6 acres and 80 cents and B schedule consists of a house and house site of 50 sq. yards in Anamanamur village.
The estate of Suryaprakasam which devolved upon the plaintiff as a result of the adoption consisted of 54 acres and odd of wet land, 30 acres of dry land and 35.50 cents of land in which he had melvaram right besides two houses and house sites. The natural father of the plaintiff examined as P. W. 4 stated in his cross-examination, that the A schedule lands fetched 10 bags of paddy per acre in 1930. He admitted that the 54 acres of wet land, which devolved upon the plaintiff, also fetched 10 bags per acre. It is therefore clear from his evidence that the properties given absolutely by way of maintenance to the widow constituted only about one-tenth of the estate.
The learned Advocate General contended that inasmuch as all thc plaintiffs lands were sold by his natural father for Rs. 35,950/- and the properties of Lakshmidevamma specified in A schedule were sold for Rs. 10,000/- under Exhibits B-5 and B-6, it must be held that the Provision for maintenance made in favour of Lakshmi-devamma was not fair and reasonable. The sale deeds under which the plaintiffs natural father sold the plaintiff's lands were not produced before the Court and it is not possible to say when and under what circumstances he parted with those lauds for a consideration of Rs. 35,950/-.
Exhibits B-5 and B-6 show that the A schedule properties were sold on 25-7-1943 i.e., after the prices of lands rose as a result of the Japanese war. We are inclined to hold, on the evidence on record, that the lands reserved for maintenance in favour of Lakshmidevamma amounted to only about one-tenth of the entire estate inasmuch us the plaintiff's natural father admitted in unequivocal terms that the yield from the 54 acres of wet hind that devolved upon the plaintiff and the A schedule hinds reserved by Lakshmidevamma fetch 10 bags per acre.
5. The main question, which the learned Advocate General contended so far as A and B schedule properties were concerned, was that the ante-adoption agreement conferring an absolute title on the widow in respect of a portion of the estate is not valid and. binding. In support of the contention, he relied upon the decision of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar, ILR 50 Mad 508 at p. 527: (AIR 1927 PC 139 at p. 146). Viscount Dunedin reviewed in an exhaustive judgment all the decisions of the Madras High Court and the Bombay High Court and summed up the law in the following terms:
'But the consensus of judgments seems to solve these two questions in this way, namely, that the consent of the natural father shows that it is for the advantage of the boy, and that the mere postponement of his interest to the widow's interest, even though it should be one extending to a life interest in the whole property, is not incompatible with his position as a son. Their Lordships, are, therefore, prepared to hold, that custom sanctions such arrangements.
As soon, however, as the arrangements go beyond that, i.e. either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist and that such arrangements are against the radical view of the Hindu law. Their Lordships are, therefore, against the idea of a general proposition that all arrangements consented to by a natural father, and of benefit to the boy in the sense that half a loaf being better than no bread he is better with an adoption with truncated rights than with no adoption at all, are valid.'
Subsequent to the decision of the Privy Council, the Madras High Court had to consider in Raju v. Nagammal, ILR 52 Mad 128: (AIR 1928 Mad 1289) whether an agreement, by which a Hindu widow proposing to adopt a son stipulated with the boy's natural father for a portion of her husband's estate being settled upon her for her absolute use and enjoyment with powers of alienation is valid and binding on the son on adoption. The learned Judges found that such an arrangement conferring an absolute title in a portion of the husband's estate is valid and binding,
Ramesam J., rightly pointed out that if according to the decision of the Privy Council in ILR 50 Mad 508 : (AIR 1927 PC 189) an agreement conferring a life estate on the widow in the whole property was valid, an agreement conferring an absolute title on a reasonable portion of this estate in favour of the widow ought not to be held to be invalid. If absolute rights are given to the widow in respect of the entire estate or if the properties are given to strangers, then only the agreement would be invalid. Venkatasubba Rao J. held that for determining the validity of the ante-adoption agreement, the test as laid down by the Full Bench in Visalakshmi Animal v. Sivaramien, ILR 27 Mad 577 (FB) must still be applied.
This decision was followed by another division bench of the Madras High Court consisting of Venkatasubba Rao and Pakenham-Walsh, JJ. in Ramiah v. Mahalakshmamma, 35 Mad LW 30. The learned Judges held that, the bequest of moveables and outstanding belonging to the testator in favour of the widow must be upheld as a valid ante-adoption agreement. No decision taking a contrary view has been cited by the learned Advocate General on behalf of the appellant The decision of this Court in Venkatarao v. Venkateswara Hao, AIR 1956 Andhra 1 does not affect this question.
It was held that an ante-adoption agreement curtailing the rights of the adopted son and conferring a life estate on him is not valid and binding. The correctness Of the decision in ILR 52 Mad 128: (AIR 1928 Mad 1289) was not doubted by the learned Judges. What was pointed out by Salyanarayana Rao J. in the aforesaid case was that the Full Bench decision of the Madras High Court in ILR 27 Mad 577 (FB) must be regarded as overruled except in so far as the ante-adoption arrangement was sanctioned by custom.
Venkatasubba Rao J. was inclined to take the view that the observations of Viscount Dunedin should be limited to the particular facts of the case, viz., that the ante-adoption agreements under which the properties were given to strangers should not be upheld. He observed that the question as to whether an absolute interest might be created in favour of a widow on a reasonable portion of the estate for maintenance under an ante-adoption agreement did not arise for consideration before the Privy Council.
6. In one of the decisions referred to by Viscount Dunedin in ILR 50 Mad 508: (AIR 1927 PC 139) viz. Narayanaswami v. Ramasami, ILR 14 Mad 172, an absolute estate was conferred on the senior widow by Muthuswami Iyyer by his will on 1st March, 1880, and the learned Judges upheld the ante-adoption agreement as valid and binding. This decision was referred to with approval by the Privy Council. The decision of the Madras High Court in ILR 52 Mad 128: (AIR 1928 Mad 1289) is referred to in Mayne's Hindu Law, 11th Edition, at page 262 in the following terms :
'This decision rests on the older view that what the Court thinks fair and reasonable is valid and binding on the adopted son. It does not seem to be consistent with the decision in Krishnamurthy's case, ILR 50 Mad 508: (AIR 1927 PC 139)'.
We are not inclined to hold that the conclusion reached by the learned Judges in ILK 52 Mad 128: (AIR 1928 Mad 1289) is in any way inconsistent with the decision in Krishnamurthi's case, ILR 50 Mad 508: (AIR 1927 PC 139). If under an ante-adoption agreement, the- widow is entitled to enjoy the whole estate for life, we sec no reason why an agreement should not be entered into between the natural father of the adopted son and the widow by which a reasonable provision for maintenance is made in her favour absolutely.
The only question that will have to be considered is whether the provision for maintenance made in favour of the widow is reasonable and is sanctioned by custom. The decision in ILR 14 Mad 172 referred to supra recognises such a custom. The note in Mayne's Hindu Law, 11th edition, at page 262 that the decision in 35 Mad LW 30 will probably stand on a different footing, as only movables and out standings were given is, in our opinion, not correct.
The Judicial Committee has not laid down that only immovable properties should not be given absolutely as noted in Mayne's Hindu Law. Both in regard to immovable property as well as move-able property, the widow succeeds as heir-at-law and no distinction is pointed out in 35 Mad LW 30 that inasmuch as moyeables and out standings were given to the widow, the position was different.
7. Referring to the decision in ILR 52 Mad 128: (AIR 1928 Mad 1289), in Gopalachandra Sarkar Sastri's Hindu Law, 8th Edition, p. 207, it is observed as follows:
'The Madras High Court, with its past experience in connection with Sahu Ram Chandra v. Ehup Singh, 44 Ind App 126; ILR 39 All 437: (AIR 1917 PC 61) has tried to explain away the above Privy Council decision in Krishnamurthy's case, ILR 50 Mad 508: (AIR 1927 PC 139) in the light of true Hindu feelings and sentiments. In the absence of fraud or other similar causes, the parents are the best persons to look after the Interests of their son and to judge what is bene-iicial to the boy given in adoption. It is hoped that the noble Lords of the Privy Council, as in the case of Brij Narain v. Mang'a Prasad, ILR 46 All 95 (AIR 1924 PC 50) will reopen the question and lay down the law according to the real Hindu view and save the institution of adoption by widows from its early extinction'.
According to the author, the effect of the view expressed in Krishnamurthi's case, ILR 50 Mad 508: (AIR 1927 PC 139) would be that adoption by widows will not take place at all in most cases. He also stated that it would be no less a fraud on the purdanashin widow who is induced to adopt upon the understanding that the conditions subject to which she adopts are binding on the adopted son, if after adoption the conditions be declared void but the adoption binding.
8. After summing up the Madras decision Viscount Dunedin held in Krishnamurthi's case, ILR 50 Mad 508 at p. 524: (AIR 1927 PC 139 at p. 144) that the general result has been to validate the arrangements so far as provision is made for the widow. A contrary view was taken in Jagannadha v. Papamma, ILR 16 Mad 400 and in the referring judgment of Subrahmanyam Ayyar J. to the Full Bench in ILR 27 Mad 577 (FB). The conservative view taken in ILR 16 Mad 400 is based upon the view expressed by Lord Macnagh-ten in the course of his judgment in Bhasba Rabidat Singh v. Indar Kunwar, ILR 16 Cal 556 (PC) wherein it is held:
'It is difficult to understand how a declaration by the natural father, or an agreement by him, if it was an agreement could prejudice or affect the rights of his son, which could only arise when his parental control and authority determined.'
In the order of reference to the Full Bench, Sit S. Subrahrnanya Ayyar, Officiating Chief Justice also took the same view in ILR 27 Mad 577 (FB). It is of interest to note that instead of posting the reference before a Full Bench of which he was a member and overruling the cases taking a contrary view as is being done nowadays, be directed it to be posted before Mr. Justice Davies, Mr. Justice Benson and Mr. Justice Russell who were not wedded to any particular view.
The learned Judges of the Full Bench preferred to follow the views expressed by distinguished Hindu Lawyers like Sri T. Muthusami Ayyar, Nananhai Haridas and Ranade JJ. The decision of the Full Bench in so far as the ante-adoption agreement is in accordance with the custom is upheld in Krishnamurthi's case, ILR 50 Mad 508: (AIR 1927 PC 139).
9. Following the decisions of the Madras High Court referred to supra (subsequent to the decision of the Privy Council) which are binding upon us by reason of the Full Bench decision of this Court in Subbarayudu v. State, (S) : AIR1955AP87 (FB) we hold that the ante-adoption agreement, evidenced by Ex. B-2, is valid and binding upon the plaintiff. We are also of the view that on principle there is nothing wrong in the widow taking a reasonable portion of the estate absolutely for her maintenance under such an agreement. There is nothing in the Privy Council decision which invalidates an agreement of that type.
10. As is now clearly laid down by the Supreme Court in Natvarlal Punjabhal v. Dadubhai Manubhai, : 1SCR339 and by the Full Bench of this Court in Kondamma v. Seshamma, 1956 Andh LT 415: ((S) AIR 1957' Andh Pra 156) (FB) that a reasonable provsion for maintenance might be made by a reversioner when a widow surrenders the estate in his favour. It is nowhere laid down that the provision for maintenance made by a reversioner should only be for her life and not absolutely. What is firmly established is that the surrender ought not to be a device to divide the estate between the widow and the reversioners. The analogy of the cases bearing on the law of surrender also confirms our conclusion that under an ante-adoption agreement, a portion of the estate can be given to the widow absolutely for her maintenance.
11. As stated supra, we hold on the facts of the case that only one-tenth of the estate was taken by the widow absolutely for her maintenance. In our opinion, it is perfectly fair and reasonable. There is no force in the contention of the learned Advocate General that as the widow was about 70 years old if died a year subsequent to the date of the agreement, the agreement should be held invalid- The mere fact that under the earlier ante-adoption agreement Exhibit B-61 she reserved only 13.30 acres for her life does not prevent her from taking 6 acres and odd absolutely for maintenance under Ex. B-2.
In judging the reasonableness of the maintenance provision, we ought not to take into account the fact that she died a year later or that she executed a will in favour of the 1st defendant marked as Exhibit B-3 on 27-7-1939. We agree with the conclusion of the Subordinate Judge that the ante-adoption agreement is perfectly valid and binding upon the plaintiff.
12. We shall now discuss the question as to how far Exhibit B-20 dated 18-9-1895 is valid and binding upon the plaintiff. For the purpose of deciding that question it is necessary for us to set out a few relevant facts. Makkapati Chinna Narasimha Josyulu and his son Suryaprakasam constituted members of an undivided family. On 2-5-1877, he executed the sale deed marked as Exhibit A-4, conveying a substantial portion of his property of an extent of 112 acres and 10 cents in favour of his relation A. Kumaraswami Sastrulu.
According to the tenor of the document, a sum of Rs. 1,497-4-0 was due to the vendee. According to the contention of defendants 6 to 17 the sale deed was executed nominally to screen the properties from the creditors of the family. Exhibits B-38, B-39 and B-40 show that even subsequent to the sale deed Exhibit A-4 Surya-prakasam and Chinna Narasimha Josyulu were taking interest in the cultivation of the lands conveyed to Kumaraswami Sastri. Under Exhibit B-39 dated 2-1-1879, Suryaprakasam wrote to his father regarding the harvesting of the crops in respect of Maheswarapuram lands sold to Kumaraswami Sastri.
Exhibit B-40 is a similar letter dated 11-1-1879 under which Sista Narasimha Somayajulu wrote to his brother-in-law Makkapati Chinna Narasimha Josyulu. The letter refers to the paddy crop that was cut and heaped up in Maheswarapuram. The next document of importance to be noted is a panchayat award dated 29-7-1879 marked as Exhibit A-18. Under the award, the Joint family lands in Annamanamur were allotted to the father and he was directed to discharge all the debts. The document shows that the properties that remained with the joint family after the sale in favour of Kumaraswami Sastri was of the value of Rs. 8750/-. The debts amounted to over Rs. 11,475/-.
As the sale deed stood in the name of Kumaraswami Sastri, he entered into the partition deed along with the other shares under Exhibit A-16. It is of importance to note that the partition deed was attested by Chinna Narasimha Josyulu. At the time of the registration, Suryaprakasam was present and identified the executants before the Registrar. The property in Polukonda was sold by Kumaraswami Sastri along with the other agraharamdars under Exhibit A-5. The writer of the document is Chinna Narasimha Josyulu, Kumara-swami Sastri executed a cowie marked as Ex. B. 36 on 2-7-1883 and it was written by Chinna Narasimha Josyulu.
A similar cowle was executed by Kumaraswami Sastri on 7-7-1883 under Exhibit A-6 in respect of the properties in Chilakumudi agraha-ram. A number of letters were filed on behalf of the defendants for the purpose of showing that in spite of the award marked as Exhibit A-18 the father and the son continued to live to gether and that the son was attending to the cultivation of the lands etc. allotted to his father. The letters relied on are Exs B. 41 to B. 43. On 23-3-1886 Ac. 103.86 were reconveyed by Kumaraswami Sastri in favour of Suryaprakasam. In that sale deed marked ag Ex A. 15, it is recited that Suryaprakasam is the divided son of Chinna Narasimha Josyulu. It is also stated in that sale deed that a sum of Rs. 1498-10-0 was due by Kumaraswami Sastri to Suryaprakasam and that the sale deed was executed in discharge of that liability. Subsequent to the sale deed, there are a number of letters that passed between Suryaprakasam and his father.
In some of those letters, reference is made to China Venkatasubbarayudu in whose favour Ex. B. 20 was executed by Lakshmidevamma. Those letters show that Chinna Venkatasubbarayudu was living with Suryaprakasam and Chinna Narasimha Josyulu. One of the letters which is strongly relied on by the learned advocate for the respondents is Exhibit B. 47 dated 19-4-1887. According to the terms of that letter, Vemavarapu Venkatachalam sent a sum of Rs. 166-8-0 by money order in the name of China Venkatasubbarayudu.
The letter clearly sets out that out of that sum Rs. 31-8-0 were due to Chinna Venkatasubbrayudu and that the balance wag due to Narasimha Somayajulu. The letters also show that Suryaprakasam died towards the end of 1886 or in the beginning of 1887. After his death, his father Chinna Narasimha Josyulu executed a lease dated 29-4-1892, marked as Ex. B. 37, in favour of Adusumalli Subrahmanyam in respect of the ancestral acquisitions relating to the lands in Chilakamudi Agraharam. It was described therein that the lands were their ancestral acquisitions. Shortly thereafter, Chinna Narasimha Josyulu also died.
The widow of Suryaprakasam executed a power-of-attorney dated 23-5-1894 in favour of Chintalapati Venkatasubbayya. She authorised him to collect the rents and profits in respect of her husband's self-acquired lands in the various villages. On 13-6-1894 a cowle was executed in favour of Adusumalli Subrabmanyam in respect of the lands for which her father-in-law had previously executed a lease under Ex. B. 37. It is after this lease deed that Ex. B. 20 was executed by Lakshmidevamma in favour of Chinna Venkataramanayya and Subbarayudu. In Ex. B. 20 it is stated as follows:
'You are the dauhitra (daughter's son) of my father-in-law. From your birth you have been brought up in our house and the inam lands mentioned in the schedule hereunder belonging to us, worth Rs. 460/- have been given to you previously in a ceremony by pouring waters from the hands of donors, my father-in-law and my husband (Dharaghrihitam) and are under your enjoyment. As you have requested that a gift deed may be executed in respect of those inam lands this gift deed has been executed'.
The question that arises for consideration is whether this document executed by Lakshmidavamma is valid and binding upon the plaintiff. The learned Advocate General strenuously contended that Lakshmidevamma had no authority to convey properties comprised in schedules C and D in favour of Venkataramanayya and Subbaravudu under Exhibit B. 20 and that the gift deed is invalid and not binding. We are not inclined to accept the contention. Ex. B. 20 does not evidence a gift executed by Lakshmidevamma.
It clearly recites that the properties were gifted by her husband Suryaprakasam and her father-in-law Chinna Narasimha Josyulu. As no registered document of gift had been executed by them, she conveyed those properties under Ex. B. 20. No sufficient reasons have been shown why the recitals in Ex. B. 20, an ancient transaction of 1895, should not be relied upon. As stated supra, the letters that passed between Surya-prakasam and his father Chinna Narasimha Josyulu clearly show that Subbarayudu was living with them.
Exhibit B. 47 clearly evidences that Subbarayudu alias Chivukula Venkata Subbarayudu was in possession and enjoyment of lands fetching an income of Rs. 31-8-0. The contention that was put forward by the learned Advocate General that Chivukula Venkata Subbarayudu referred to in Ex. B- 47 is not the grandson of Chinna Narasimha Josyulu but another co-sharer is in our opinion not correct. Ex. A-16 no doubt, shows that there was a co-sharer by name Chivukula Venkata Subbarayudu, son of Ramaswami Josyulu.
But, having carefully read the letters, we are inclined to think that the money order that was sent by Vemavarapu Venkatachalam and referred to in Exhibit B. 47 is Chinna Venkatasubbarayudu in whose favour Exhibit B. 20 was executed and that the money order related to the income from C and D schedule lands. We are also inclined to place great reliance on that document for coming to the conclusion that Chinna Subbarayudu was in possession and enjoyment of the C and D schedule properties orally gifted to him by his maternal grand father and maternal uncle.
13. It was next contended by the learned Advocate General that in the absence of other evidence aliunde no reliance ought to be placed on the recitals contained in Exhibit B. 20. We are not inclined to accept this contention. The recitals contained in Exhibit B. 20 may be relied on as evidence under the terms of Sections 32(3) and 32(7) of the Indian Evidence Act. Section 32(3) provides that statements which are against the pecuniary or proprietary interest of the person making it are admissible if the person who made the statements is dead.
Similarly Section 32(7) provides that the statement contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a) is also admissible if the person who made the statement is dead. The statements made by the widow Lakshmidevamma under Exhibit B. 20 arc admissible, in our opinion, both under the terms of Sections 32(3) and 32(7) of the Indian Evidence Act.
14. The identical question arose for consideration before a single Judge of the Madras High Court in Appasami Pillai v. Ramu Tevar, AIR 1932 Mad 267. The learned Judge referred to the decisions of the Privy Council in Brijlal v. Indar Kunwar, ILR 36 All 187 : (AIR 1914 PC 38) and Banga Chandra v. Jagat Kishore, ILR 44 Cal 186 : (AIR 1916 PC 110). The learned Judge rightly stated that the words 'by themselves' used by Ameer Ali, J. at page 193 (of ILR All) : (at p. 40 of AIR) in ILR 36 All 187 : (AIR 1914 PC 38) show that the recitals are not inadmissible in evidence.
This decision of Rarnesam, J. was approved by a Bench of the Madras High Court in Venkataramayya v. Seshamma, ILR 1937 Mad 1012 : (AIR 1937 Mad 538). The learned Judges held that the statement of facts contained in a will that the property is the self-acquired property of the testator falls under Section 32(7) of the Evidence Act. Reliance was placed by the learned Judges on the earlier decision of the Madras High Court in Nallasiva Mudaliar v. Ravan Bibi, 1921 Mad WN 560 (AIR 1921 Mad 383) wherein the learned Judges relied upon the recitals in a mortgage document.
Statements of the mortgagor that he was the owner of the property and that he got title under a purchase were held to be admissible under Section 32(7) of the Evidence Act. A similar view was expressed by a Bench of this Court, to which one of us (Umamaheswaram, J.) was party, in Appalanarasimham v. Udalama, : AIR1959AP407 . The statement of a person contained in a will that he was separated from the joint family of which he was a coparcener and that he had no further interest in the joint property was held to be admissible under Section 32(3) of the Evidence Act The decision of Venkataramana Rao, J. in Krishnamurthi v. Lingayya, AIR 1936 Mad 677 is also to the same effect though there is no discussion under what section of the Evidence Act the recitals are admissible. The learned Judge held that the recital in the deed of gift that her husband desired that she should do some charitable act so that he may attain salvation was admissible in evidence. Following these decisions-we hold that the recitals contained in Exhibit B. 20 are admissible in evidence.
15. The statements made by Lakshmidevamma that the properties mentioned in Schedules C and D were already gifted away by her father-in-law and her husband are statements against her proprietary interest and the terms of section 32(3) of the Evidence Act are consequently attracted. Section 13(a) of the Evidence Act enacts as follows :
'Where the question is as to the existence of any right or custom, the following facts are relevant: (a) any transaction by which the right of custom in question was created, claimed, modified, recognised, asserted, or denied or which was inconsistent with its existence'.
Section 32(7) of the Evidence Act provides that when the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a), it is admissible. The statement that is made by the widow in the document is in regard to an antecedent oral gift affected by her husband and father-in-law. In our opinion the recitals are admissible under Section 32(7) of the Evidence Act as well.
16. The learned Advocate General strongly relied upon a Full Bench decision of the Madras High Court in Subrahmanyan v. C. Soontyya, : AIR1950Mad514 . The passage relied on at p. 532, (of Mad LJ) : (at p. 517 of AIR) and is as follows :
'Recitals of necessity in such sale deeds are not evidence by themselves of the facts recited and evidence aliunde would be necessary to prove their truth. ILR 36 All 187 : (AIR 1914 PC 38); ILR 44 Cal 186 : (AIR 1916 PC 110). It however owing to lapse of time direct evidence of the fact and circumstances recited has disappeared, then the recitals acquire importance as observed by the Judicial Committee in ILR 44 Cal 1S6 : (AIR 1916 PC 110). In such cases a recital consistent with probability and the circumstances of the case cannot lightly be set aside. Actual proof of the necessity justifying the sale is not essential to establish its validity it being enough that a representation should have been made to the purchaser of the existence of the necessity and that he should have acted honestly and made proper enquiry to 'satisfy himself of its truth'.
According to the learned Advocate General, the recitals are evidence only of the representations made by the widow as to the necessity for the sale of the mortgage. If the recitals are evidence of the representation made by the widow, we fail to sec how the recitals do not afford evidence of an antecedent gift set out in the document. Having regard to the fact that the validity of the document is challenged after 50 years or more and the parties to the document are all dead, it is not possible for the alienees to produce better evidence.
We are inclined to hold that as the recitals are consistent with the probability of the gift having been effected by Suryaprakasam and his father Chinna Narasimha Josyulu to the donees under Ex. B. 20 and in the circumstances of the case, we have no doubt that it is valid and binding upon the plaintiff. As pointed out by the Lord Chancellor in TT..R 44 Cal 186 at p. 196 : (AIR 1916 PC 110 at p- 111.) 'To hold otherwise would result in deciding that a title becomes weaker as it grows older so that a transaction perfectly honest and legitimate when it took place -- would ultimately be incapable of justification merely owing to the passage of time.
We are inclined to accept the case of the alienees that an oral gift was made on the strength of Exhibit B. 47 as also the recitals contained in Exhibit B-20. The circumstances and probabilities namely, that the persons in whose favour Ex. B-20 was executed were residing with their maternal grandfather and maternal uncle also renders it probable that the oral gift was duly effect-ed by them. We are not inclined to uphold the contention of the learned Advocate General that the recitals should be brashed aside as having been falsely made by the widow to confer title on Subharayudu and Venkataramanayya.
17. The transaction evidenced by Exhibit B-20 may be viewed at from a different point of view. On the death of Suryaprakasam, Chinna Narasimha Josyulu asserted that the properties survived to him and executed a lease deed marked as Exhibit B-37. On his death, there appears to have been a dispute between Lakshmi-devamma and his grandsons Venkataramanayya and Subbarayudu. If the properties were the sell-acquisitions of Suryaprakasam, Lakshmidevamma would be entitled to those properties.
If the properties were the, joint family properties of Suryaprakasam and Chinna Narasimha Josyulu and if they survived to Chinna Narasimha Josyulu on the death of Suryaprakasam, they would devolve upon his daughter's sons viz. Venkataramanayya and Subbarayudu. The disputes appear to have been settled between the parties and the properties that were in the possession and enjoyment of Venkataramanayya and Subbarayudu were allotted to be enjoyed by them and the other properties taken by Lakshmidevamma.
The daughter's sons of Chinna Narasimha. Josyulu gave up their contention that the properties were the joint family properties and recognised the title of Lakshmldevamma. Lakslimidevamma on the other hand, agreed to conve the properties that were originally gifted to Venkataramanayya and Subbarayudu by their maternal grandfather and maternal uncle, if the transaction is viewed in this light, it would amount to a bona fide settlement of family disputes and a family arrangement entered into between the parties. If so viewed, the transaction would be valid and binding upon the adopted son.
18. In order to appreciate the rival contentions that were put forward on behalf of the par-tics it is necessary to set out the proceedings taken by the plaintiff's grand-father Chinna Ven-katachelam, in O. S. No. 251/1907 on the file of the District Munsif, Gudivada. The validity and binding nature of Ex. B-20 was questioned in his plaint Ex- B-21. It is stated therein that all the properties were the separate properties of Suryaprakasam and that on his death they devolved upon his widow, Lakshmidevamma and that the gift deed is not valid and binding upon the reversioners. Lakshmidevamma filed a written statement marked as Ex. B-22.
She stated that her husband and father-in-law continued as members of an undivided family and that the properties survived to her father-in-law, Naragimha Josyulu. She claimed title to the properties by reason of adverse,possession. In the written statement filed on behalf of Venkatarama-nayya and Subbarayudu it was stated that the C schedule property was gifted to them by their maternal uncle, Suryaprakasam and that the D schedule property herein belonged absolutely to Lakshmidevamma's mother-in-law and did not form part of the estate of Suryaprakasam.
The disputes were referred to three arbitrators, Adusumilli Subrahmanyam, Makkapati Yenkatasuhrahmanyam Josyulu and Venkatasiva Josyulu under Ex. B-24. It does not appear from the records whether an award was passed by them. A compromise petition was however filed by the parties in the suit and it is marked as Ex. B-25, Clause 1 of the compromise states that inasmuch as it had been found on enquiry that the plaint schedule mentioned 2nd item land which is situate in Gannepudi (D schedule property in the present suit) haying been given to the 1st defendant's mother-in-law by her parents towards Pasupu Kunkuma, it should be taken by Venkataramanayya and his brother Subbarayudu as being her next heirs.
The parties agreed that an extent of 10 acres conveyed under Ex. B-20 should be upheld, as it was conveyed by Suryaprakasam and has been in possession and enjoyment of Venkataramanayya and Subbarayudu. As regards the properties in possession and enjoyment of Lakshmidevamma it was agreed that she should enjoy only a widow's estate. A decree was passed in terms of the compromise under Ex. B-26.
19. Sri Chandrasekhara Sastry, the learned Advocate for the respondents, contended strenuously that the compromise entered into between Chinna Venkatachelam, the nearest reversioner to the estate of Suryaprakasam and Lakshmi-devamma and Venkataramanayya and Subbarayudu should be upheld as a bona fide settlement of family disputes. We are inclined to accept his contention. There is no force in the contention of the learned Advocate General that this argument should not be allowed to be raised in this Court.
In the written statements filed by the alienees it is specifically pleaded that by reason of Exs. B-25 and B-26 the plaintiff is not entitled to challenge the validity of Ex. B-20. As all the necessary documents have been filed in this case and as the question is one of law, we permit the respondents to advance this argument. The facts stated supra clearly show that there was a bona fide dispute between the parties as to whether the properties belonged to Suryaprakasam or to the joint family of Suryaprakasam and his father, Chinna Narasimha Josyulu.
If the sale deed, Ex. A-4, Ex. A-15 and the award Ex. A-18 represented real transactions and a partition was effected between the father and the son under the award, the properties would belong to Suryaprakasam and on his death would devolve upon his widow, Lakshmidevamma, It the several letters relied on by the respondents are gtven due effect to, they would establish that there was no real partition between the rather and the son and that the sale' deed was executed in lavour of Kumaraswamy Sastry only with a view to screen the properties from the creditors.
If the contention of Lakshmidevamma that the properties survived to her father-in-law was true, she would have been entitled to the properties by adverse possession. The parlies, who were conversant with the real state of facts, entered into a bona fide compromise under Ex. B-25. tO use the language of Lord Dunedin, the parties were dealing with facts nearer to their ken than the facts are to this Court now. A compromise of this description is, in our opinion, valid and binding upon the subsequently adopted son.
Chinna Venkatachalam was the nearest re-versioner to the estate of Suryaprakasam and he represented the estate properly. The widow pub forward an absolute title to the properties by adverse possession. Venkataramanayya and Subha-rayudu claimed title both under Ex. B-20 as also from the mother-in-law of Lakshmidevamma. As pointed out by Bose, J. in Sahu Madho Das v. Mukand Ram, (S) AIR 1955 SC 481 at p. 490.
'It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and Defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the rights of others, as they had previously asserted it, to the portions allotted to them respectively-The learned Judge observed that the Courts do lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members. To the same effect are the observations of Ameer All J. in Mata Prasad v. Nageshar Sahai, ILR 47 All 883: (AIR 1925 PC 272). They are as follows :
'Their Lordships are of opinion that the learned Judges of the appellate Court in India are right in regarding it as a family settlement which was 'prudent and reasonable' under the circumstances, to use the language of Lord Philli-more in the case of Ramsumran. Prasad v. Shyam Kumari, 49 Ind App 342: ILR 1 Pat 741; (AIR 1922 PC 3561.'
The same principle is laid down in Sureshwar Misser v. Maheshrani Misrain, ILR 48 Cal 100: (AIR 1921 PC 107) and Angamuthu v. Sinnapen-nominal, AIR 1938 Mad 364. We are inclined to uphold tile contention of the respondents and find as follows:
(1) that Venkataranwnayya and Subbarayudu were in possession and enjoyment of the C and D schedule properties under an oral gift from the maternal uncle, Suryaprakasam and Chinna Narasimha Josyulu.
(2) that Ex. B-20 executed by Lakshmidevamma in recognition of their antecedent title under the anterior oral gift, is valid and binding upon the plaintiff,
(3) that notwithstanding the nomenclature or terminology of Ex. B-20 that it is a gift deed, it represents a bona fide settlement of family disputes and a recognition of the antecedent rights of Venkataramanayya and Subbarayudu, and
(4) that by reason of Exs. B-25 and B-26 the plaintiff is not entitled to challenge the title of Venkataramanayya and Subbarayudu in respect of C and D schedule properties.
20. Sri K. B. Krishnamurthy, the learned Advocate for respondents 15 to 17, contended that the properties in schedule 'B' belonged to Adi-lakshmamma, the mother-in-law of Lakshmideva-rnma, and that they did not form part of the estate of Suryaprakasam. He relied upon Ex. B-66, the title deed granted to Ambatipudi Sundaramma. The document is dated 17-10-1860. It shows that the property belonged to Ambatipudi Sundaramma. From the evidence of D.Ws. 4 to 6 it is clear that Sundaramma is the widow of Venkatarayudu and that Adilakshmamma the mother-in-law of Lakshmidevamma is the sister of Venkatarayudu as a result of his adoption by Pullayya.
There is no evidence that this property was given to Adilakshmamma for Pasupu Kumkuma by Pullayya. What Ex. B-66 shows is that on 17-10-1860 the D schedule property belonged to Ambatipudi Sundaramma and not to Makkapati Suryaprakasam and Narasimha Josyulu. Exs. A-4 and A-15 show what properties belonged to the joint family of Suryaprakasam and his father Narasimha Josyulu. After the properties were conveyed in favour of Kumaraswamy Sastry Under Ex. A-4, the properties that remained in the family were dealt with under Ex- A-18.
The D schedule properly docs not find a place either in Ex. A-4 A-15 or A-18. So the con-tendon of Sri K. B. Krishnamurthy is that there is no proof by the plaintiff, who claims as the adopted son of Suryaprakasam, that the D schedule properties form part of the estate of Suryaprakasam. The compromise, Ex. B-25, also recognises that the D schedule property did not belong to Suryaprakasam's estate and that the D schedule property was given by way of Pasupu Kumkuma to Adilakshmamma, the mother-in-law of Lakshmidevamma. It is clear from these documents that the D schedule properties did not belong to the estate of Suryaprakasam.
21. The learned Advocate General contended that it is not open to the alienees, who claim through Venkataramanayya and Subbarayudu under Ex. B-20, to deny the title of Suryaprakasam and Narasimha Josyulu. Even though Ex. B-20 proceeded on the footing that the D schedule properties belonged to Suryaprakasam and Narasimha Josyulu, in our opinion, Exs. B-66 and B-25 read with Exs. A-4 and A-18 make it clear that the D schedule properties did not belong to Suryaprakasam's family. We confirm the finding of the Subordinate Judge on this ground as well.
22. The next question that remains to be considered is whether on the documentary evidence the Subordinate Judge was justified in finding that Suryaprakasam and Narasimha Josyulu were members of an undivided family in spite of the award, Ex, A-18. We have already set out the entire documentary evidence bearing on this question. We are inclined to take the view that as there were debts amounting to more than Rs. 11,000/- Narasimha Josyulu executed the sale deed Ex. A-4 nominally in favour of Kumara-swami Sastry.
The mere fact that Kumaraswami Sastry sold one item of the property or entered into a parti-lion with the other co-sharers or executed a lease deed, does not lead to the conclusion that the sale deed was a real transaction. As the sale deed stood in Kumaraswami Sastry's favour he had to necessarily take part in the partition deed, Ex. A-16; Cowle deed Ex. B-36 and the sale deed Ex. A-5. We have already set out how in regard to each of these documents either the father or the son was the attestor or the scribe thereof.
The letters Exs. B-38 to B-40 clearly show that even though the properties were conveyed in favour of Kumaraswami Sastry, the father and son were taking interest in the cultivation of Maheswarapuraru lands covered by Ex. A-4. Though the reconveyance Ex. A-15, was taken in the name of Suryaprakasam describing him as a divided member of the family, we are inclined to bold that it was intended for the benefit of both the father and son. Possibly the debts were not discharged or cleared by that time and the father and son wanted to keep up the appearance that they were divided under Ex. A-18.
The fact that immediately after the death of Suryaprakasam, the father, Narasimha Josyulu executed a cowle deed, Ex. B-37, clearly shows that the property was treated as property which survived to him. If really under the award all the properties were allotted to the share of the father, there is no evidence how the son, Surya-prakasam, was in a position to lend a sum of Rs. 1,498-10-0 to Kumaraswami Sastry. The figures that appear in Ex. A-15 and Ex. A-4 are approximately equal. If really a finding is necessary as to whether the family was joint or separate we are inclined to agree with the Subordinate Judge that the family was joint and that the properties survived to Narasimha Josyulu.
Having regard to the terms of Ex. B-25, the compromise entered into bona fide between the plaintiffs grand-father, Venkatachelam, Lakshmidevamma and Venkataramanayya and Subbarayudu, this question does not assume any real importance.
23. Sri Chandrasekhara Sastry contended that if the properties had really survived to Narasimha Josyulu, both Venkataramanayya and Subbarayudu would be entitled to the entire properties including the properties covered by Ex. B-20 as the heirs-at-law and that the adopted son would not divest the estate that vested in them. He contended that even assuming that Ex. B-20 was invalid and that the compromise. Ex. B-25, is not valid and binding upon the plaintiff, the alienees would be entitled to retain possession, as Venkataramanayya and Subbarayudu succeeded to those properties.
The question was not raised in the pleadings and no issue has been framed thereupon. Moreover, the decision in Shrinivas Krishna Rao v. Narayan Devji, : 1SCR1 does not support this contention inasmuch as the property in the hands of Narasimha Josyulu which devolved upon his grand sons was joint family property. So long as there was in existence a widow of a coparcener capable of bringing a son into existence by adoption, and she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died and his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener.
Venkatarama Ayyar, J. pointed out that in substance, the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption.
24. In the result the appeal fails and is dismissed with costs. Respondents 2, 4, and 5 will be entitled to costs on the basis of the value of A schedule properties; respondents 10 to 12 on the value of C schedule properties and respondents 15 to 17 on the value of the D schedule properties, each one set.