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Manikya Nayanim Varu and ors. Vs. Lakshminarasimha Sastrulu and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1933Mad43; (1932)63MLJ319
AppellantManikya Nayanim Varu and ors.
RespondentLakshminarasimha Sastrulu and ors.
Cases ReferredPukhraj Jeshraj v. Jamsetji Rustum I.L.R.
Excerpt:
.....of an intermeddler with the estate. . that being so, we are clearly of opinion that not only was chengama naidu (no. 26 of 1920. liven assuming that venkatamma was absolutely entitled to the three villages mentioned in the b schedule which formed the subject of the lease granted by her to the present plaintiff's father, we fail to see how chengama naidu (no. the principle that a decree passed in a suit wherein the true legal representatives of a deceased party were not brought on record would not be binding on the estate of the deceased party in the hands of the true legal representatives has been clearly stated in a decision of the bombay high court in pukhraj jeshraj v. this principle clearly governs the present case. the learned subordinate judge has failed to consider the vital..........venkatamma in conducting the litigation relating to those villages. during the i pendency of that suit, venkatamma died and chengama naidu (no. 2) brought himself on record as her legal representative and was made the second plaintiff. the suit was subsequently transferred to the additional sub-court, chittoor and numbered j as o.s. no. 26 of 1920. a razinama was eventually put in on the 17th march, 1920 and was recorded by the court (vide ex. g). under this razinama, chengama naidu (no. 2), the second plaintiff therein, agreed to pay to the defendants therein a sum of rs. 15,000 together with interest till payment and further created a charge for the realisation of this sum over the three villages (mentioned in the present b schedule), which formed the subject-matter of the lease.....
Judgment:

Sundaram Chetty, J.

1. This appeal has been preferred by defendants 3 to 7 and arises out of a suit brought by the plaintiff (first respondent) for a declaratory relief in the Court of the Subordinate Judge of Chittoor. The facts of the case have been set out in the judgment of the Subordinate Judge and a brief reference to them is necessary in order to understand the nature of the dispute in this case. Palayagar Chengama Nayanim Vara (No. 1) was in possession of 62 villages including the three villages mentioned in the plaint schedule B as usufructuary mortgagee under two mortgage deeds, dated the 17th May, 1890 and executed by the Rajah of Karvetnagar. He died in or about 1893 leaving behind him four sons, namely, Vijayappa Nayanim Varu, Govindasami Nayanim Vara and defendants 3 and 4. By means of an award, a partition was effected among these four sons, whereby 14 out of the 62 villages including the three villages mentioned in Schedule B were allotted to the share of Govindasami Nayanim Vara who died in 1897. His widow was Venkatamma. His elder brother Vijayappa Nayanim Varu had two sons, namely Chengama Naidu (No. 2) and the present second defendant. Defendants 5 to 7 are the sons of the 4th defendant. According to the plaintiff's case, Chengama Naidu (No. 2) was the adopted son of Govindasami Nayanim Varu. The present first defendant is the minor son of Chengama Naidu (No. 2). Subsequent to the death of Govindasami Nayanim Vara, his estate became a veritable apple of discord and was the subject-matter of several suits in a long series of litigation. Venkatamma denied the truth and validity of the adoption of Chengama Naidu (No. 2) which was set up by his natural father Vijayappa. The disputes between them were referred to the arbitration of one Krishnamachariar, a Pleader of Tirupati, who passed an award on the 5th January, 1898 (Ex. E). Curiously enough, this arbitrator purporting to act on a consent statement given by the parties effected a sort of division between them without deciding the question of adoption one way or the other. He divided the properties between Chengama Naidu (No. 2) and the widow Venkatamma in the proportion of 3: 1. It is under. this award that Venkatamma got the three villages mentioned in Sch. B with absolute rights, whereas, the properties allotted to Chengama Naidu (No. 2) were subject to a defeasance clause to the effect, that, if Venkatamma should beget a male child, he should be divested of the properties given to him under the award. The dispute did not end with this award, but it proved to be the beginning of further disputes. Venkatamma filed O.S. No. 21 of 1900 on the file of the Sub-Court of Chittoor for a declaration that the award is void and that the alleged adoption is neither true in fact nor valid in law. To this suit Vijayappa and his son Chengama Naidu (No. 2) the alleged adopted son and also the present defendants 3 and 4 were parties. (Ex. III.) In the written statement filed by defendants 3 and 4 they denied the truth and the validity of the alleged adoption, questioned the award as being a fraudulent one and also set up an oral will by the late Govindasami Nayanim Varu, whereby he bequeathed all his properties in their favour to be divided equally between them. (Ex. IV.) That suit ended in a rasi and was dismissed. Subsequently, the present 4th defendant filed O.S. No. 16 of 1905 in the District Court of North Arcot for the recovery of Govindasami's estate on the strength of the nuncupative will alleged to have been left by him. He' also sought for a declaration that the alleged adoption of Chengama Naidu (No. 2) is neither true nor valid. Vijayappa and the alleged adopted son were defendants 1 and 2 in that suit. The present 3rd defendant was also the 3rd defendant, and Venkatamma was the 4th defendant and her brother was the 5th defendant in that suit. It would appear that a decree was passed in that suit declaring the adoption of Chengama null and void, but subsequently the decree was set aside and the suit was restored to file. It was numbered as O.S. No. 26 of 1908 on the file of the District Court of North Arcot. Eventually, it ended in a razinama decree on the 31st July, 1909 (Exs. VII and VIII), The compromise was between the plaintiff in that suit and defendants 1, 2 and 3 therein. Venkatamma and her brother were no parties to that compromise and they were exonerated from the suit. Under this razinama, one of the 14 villages above referred to, namely, Nandimangalam, was allotted to Chengama Naidu (No. 2) who was the 2nd defendant therein with the burden of paying one-third of the debts due by the deceased Govindasami and the other properties should be taken by the plaintiff and the 3rd defendant therein, (the present defendants 3 and 4) in equal shares with the corresponding liability of paying two-thirds share of the debts clue by the deceased. This razinama was entered into without deciding the status of Chengama Naidu in either way but leaving that question completely open. As Venkatamma was exonerated from the suit with costs she was not bound by this compromise. The right which she acquired to the three villages as per the award referred to above remained unaffected by the razinama decree which was passed on the 31st of July, 1909. There is no doubt that defendants 3 and 4 who survived the widow Venkatamma would be entitled to the estate of Govindasami as the nearest reversioners, if the alleged adoption of Chengama Naidu (No. 2) be not true and valid. It is pretty clear that, though the question relating to this adoption was raised in ever so many proceedings, somehow the decision of this question was shelved and some arrangement with respect to the properties in dispute in those proceedings were entered into as a result of compromises, leaving the question relating to the adoption in a nebulous condition.

2. While matters stood thus, Venkatamma was dealing with the three villages given to her under the award by creating mortgages over the same and also leased them to the present plaintiff's father on the 27th March, 1907, for a period of 20 years fixing the annual rent at Rs. 550. It is alleged in para. 8 of the plaint that under the terms of the lease deed the lessee could appropriate the expenses incurred by him in connection with the litigation concerning the villages out of the rents and profits thereof. During the continuance of the lease Venkatamma filed O.S. No. 34 of 1918 on the file of the Sub-Court, Chittoor, against the present plaintiff and his brothers for the recovery of arrears of rent, namely, Rs. 3,863-12-0. In,the written statement fded by the. defendants therein, they pleaded that a sum of Rs. 16,000 was due to them on account of the expenses incurred by them on behalf of Venkatamma in conducting the litigation relating to those villages. During the I pendency of that suit, Venkatamma died and Chengama Naidu (No. 2) brought himself on record as her legal representative and was made the second plaintiff. The suit was subsequently transferred to the Additional Sub-Court, Chittoor and numbered j as O.S. No. 26 of 1920. A razinama was eventually put in on the 17th March, 1920 and was recorded by the Court (vide Ex. G). Under this razinama, Chengama Naidu (No. 2), the second plaintiff therein, agreed to pay to the defendants therein a sum of Rs. 15,000 together with interest till payment and further created a charge for the realisation of this sum over the three villages (mentioned in the present B schedule), which formed the subject-matter of the lease granted by Venkatamma.. It is on the strength of this razinama that the present plaintiff, who says that the amount due under this razi decree was allotted to him in a partition between him and his brothers, has filed this suit for a declaration.

3. The usufructuary mortgage right in the aforesaid 62 villages possessed by the family of Palayagar Chengama Nayanim Varu (No. 1) is now represented by the amount deposited in the Sub-Court, Chittoor, in pursuance of a redemption decree passed in O.S. No. 31 of 1919 in favour of the Mahant of Tirupati who filed that suit for redemption, as he became the purchaser of the equity of redemption in those 62 villages in execution of a decree obtained against the Raja of Karvetnagar. Out of the proportionate amount due to Govindasami Nayanim Varu in respect of fiis othi right in the fourteen villages allotted to his share in the family partition, a certain amount would be payable to the owner of the othi right in the three villages mentioned in the B schedule by apportionment, and what the present plaintiff wants in this suit is a declaration of his right to receive that amount by virtue of the razinama decree in O.S. No. 26 of 1920, whereby a charge is created in his favour over the othi right in those three villages. This claim is opposed by defendants 3 and 4 who state that Chengama Naidu (No. 2) was never adopted by Govindasami and the alleged adoption is also invalid in law. They further contend that on the death of Venkatamma they became entitled to the estate of her husband Govindasami as the nearest reversioners. They attack the razinama in O.S. No. 26 of 1920 as collusive and fraudulent and contend that they are in no way bound by that razinama and the debt mentioned in that razinama is neither true nor binding upon them as reversioners to the estate.

4. Plaintiff's claim to enforce the charge created under the razinama in O.S. No. 26 of 1920 as against the othi right held by the deceased Govindasami in the three villages now in question is mainly based on the case set up in the plaint, namely, that Chengama Naidu (No. 2) who entered into that razinama as the legal representative of Venkatamma, was competent to do so as he was the validly adopted son of Govindasami. The truth and validity of his adoption having been denied by the reversioners, namely, the present defendants 3 and 4, this question was made the subject of the first issue. The learned Subordinate Judge has found that issue in the negative. As observed by him in paragraph 21 of his judgment, the direct evidence about the alleged adoption is so meagre and worthless that no reliance can be placed upon it. He has discussed the circumstances connected with this point, and in the face of the improbabilities and suspicious features connected with the story of adoption, it must be held that the finding of the Lower Court is the only possible conclusion upon the evidence. No serious attempt has been made before us by the learned advocate for the plaintiff (first respondent) to challenge the correctness of that finding. He had to concede the utter inadequacy of the proof adduced in support of the alleged adoption, but what he tried to do was to persuade us to hold that defendants 3 and 4 are in some way estopped from disputing the truth and validity of the adoption. In the first place, it must be observed that no such case of estoppelhas been set up in the plaint. If the plaintiff really wanted to rely upon an estoppel, either as a rule of evidence or as part of the substantive law, which would preclude defendants 3 and 4 from disputing the adoption in the present case, he must have set up such a plea specifically in the plaint making the necessary averments for sustaining such a plea. Such a specific plea is conspicuous by its absence in the plaint, nor was any issue taken on this point in the trial Court. The adoption on which alone the plaintiff based his claim in the plaint not having been made out, we have to hold that Chengama Naidu (No. 2), who intervened in O.S. No. 26 of 1920 after the death of Venkatamma (the plaintiff therein) as her legal representative, was not competent to represent the estate, and consequently the razinarna entered into by him with the defendants therein, whereby a charge was createdby him for a certain amount over the properties appertaining to the estate is invalid and unenforcible against the actual heirs who became entitled to the estate on the death of Venkatamma, namely, the present defendants 3 and 4.

5. It is, however, argued on behalf of the 1st respondent that Chengama Naidu (No. 2) could at least be deemed to be a legal representative within the definition given in Section 2 (11) of the Civil Procedure Code, if it could be shown that he was an intermeddler with the estate of the deceased by getting into possession of some portion thereof. The three villages in question having been leased out by Venkatamma to the father of the present plaintiff, they were not in the possession of Chengama Naidu (No. 2) when he brought himself on record in O.S. No. 26 of 1920 after the death of Venkatamma. It is not clearly shown that he was in possession of any other property appertaining to the estate of Govindasami about that time, in order to make him a legal representative in the sense of an intermeddler with the estate. Here again, an attempt has been made to invoke for aid the plea of estoppel in order to prevent defendants 3 and 4 from disputing the status of a legal representative to Chengama Naidu (No. 2) in O.S. No. 26 of 1920. This contention is based upon the facts relating to certain proceedings carried on after the death of Govindasami. One Mari Subbaraya Chetti filed O.S. No. 37 of 1909 on the file of the District Court of North Arcot to recover a sum of money due on a mortgage executed by Vijayappa as guardian of Chengama Naidu (No. 2), the alleged adopted son of Govindasami. The widow Venkatamma and also the present defendants 3 and 4 were made parties to that suit. These defendants denied the adoption in their written statement. However, the suit ended in a compromise (vide Exs. D and D-1). At about that time the will suit above referred to, namely, O.S. No. 26 of 1908 filed by the 4th defendant, was pending. By virtue of the aforesaid compromise, the mortgagee was allowed to have a decree in his favour for the amount claimed by him irrespective of any decree that may be passed in the will suit. As pointed out by the learned Subordinate Judge, the trend of the razinarna Ex. D-1 is that, irrespective of any finding as to the will or adoption that may be given in O.S. No. 26 of 1908, the mortgagee could recover the amount due to him. This decree was allowed to be passed in that manner without having the effect of an admission of the adoption by defendants 3 and 4. Similarly, in the subsequent compromise entered into in O.S. No. 26 of 1908 (vide Ex. VIII) there was no reference to the adoption at all and in fact it was neither affirmed nor negatived. A decree for money was obtained by one Chandra Veerasami Naidu against the estate of Govindasami. That decree was transferred to Messrs. P. Orr & Sons. The latter executed the decree against Venkatamma (the widow) and Chengama Naidu (No. 2). The present defendants 3 and 4 were not made parties to the execution proceedings. It would appear that the present 3rd defendant took a transfer of that decree in 1914 and paid off the money due to Messrs. P. Orr & Sons. It is argued that by such conduct defendants 3 and 4 must be deemed to have recognised Chengama Naidu at least as a joint legal representative with Venkatamma in respect of the estate of Govindasami. It is significant that in the aforesaid two proceedings execution was taken out against the widow and Chengama Naidu (No. 2). If the latter was really treated as the adopted son of Govindasami, there was no need to implead the widow. If there was no adoption, the widow would be the proper and sole legal representative. However, as the adoption was being set up though that q.uestion was never allowed to be decided one way or the other in any of the proceedings, the creditor who was interested in the recovery of the money due to him under the decree chose to implead both the widow and the alleged adopted son by way of abundant caution. There is 'hardly any doubt that the present defendants 3 and 4 were throughout denying the truth and the validity of the alleged adoption of Chengama Naidu (No. 2) and their objection was so constant and persistent that the Court had to order the deletion of the description of Chengama Naidu as the adopted son in some transfer deeds (vide Ex. I). In O.S. No. 39 of 1922 on the file of the Sub-Court of Chittoor, which was filed by B. Kuppuswami Reddi against the present first defendant and some others including the present defendants 3 and 4, the same questions were raised as would appear from the judgment in that suit (vide Ex. XII), which was given on the 18th November, 1924. The alleged adoption of Chengama Naidu (No. 2) was found to be neither true nor valid and it was held that Venkatamma had no absolute rights in the three villages in question. In this tangled mass of proceedings, it is impossible to draw any reasonable inference, that the present defendants 3 and 4 have, by any declaration or conduct, intentionally caused or permitted the present plaintiff to believe that Chengama Naidu (No. 2) was either the adopted son of Govindasami or his proper legal representative. In no proceeding to which the present plaintiff was a party could he show that anything was done by defendants 3 and 4 so as to create an estoppel in his favour.. That being so, we are clearly of opinion that not only was Chengama Naidu (No. 2) not the adopted son of Govindasami but he was also not the proper legal representative of Venkatamma in O.S. No. 26 of 1920. liven assuming that Venkatamma was absolutely entitled to the three villages mentioned in the B Schedule which formed the subject of the lease granted by her to the present plaintiff's father, we fail to see how Chengama Naidu (No. 2), if he was not the adopted son, could be her legal representative for the recovery of the money claimed in O.S. No. 26 of 1920 or for creating a charge over her properties for any amount alleged to be due by her. The present defendants 3 and 4 either as reversioners to the estate of Govindasami or as heirs to Venkatamma could not be bound by the razinama filed in O.S. No. 26.of 1920 to which they were no parties. The debt mentioned in that razinama is impugned by them to be untrue and the razinama itself is attacked as collusive and fraudulent. That being so, the present plaintiff, who seeks to enforce the terms of that razinama as against defendants 3 and 4, should prove the truth and the binding character of the debt therein mentioned by adducing, the necessary evidence. The recital in the razinama cannot be deemed to be proof of the debt or its binding character as against persons who were no parties to it. No independent proof has been adduced in this case. If Venkatamma herself was a party to that compromise and if the villages in question were her absolute property, it can be said that her heirs should be bound by that compromise and should take her estate subject to the encumbrances created by her. That is not the case here. What right had Chengama Naidu (No. 2) to interpose in her suit as her legal representative and to create a charge or an encumbrance over the villages which belonged to her? The answer to this question must be in the negative. The principle that a decree passed in a suit wherein the true legal representatives of a deceased party were not brought on record would not be binding on the estate of the deceased party in the hands of the true legal representatives has been clearly stated in a decision of the Bombay High Court in Pukhraj Jeshraj v. Jamsetji Rustum I.L.R. (1926) Bom. 802. This question has been discussed at some length by Marten, C. J. That learned Judge has observed that, in view of the altered wording of O. 22, R. 4 of the Civil Procedure Code, it would not be sufficient for an applicant to allege that a particular person is the legal representative of a deceased defendant to enable a decree to be passed which should be valid against the true heir, although that heir is not a party to the suit. If a plaintiff who seeks to enforce a debt owing by the deceased adds wrong-persons as legal representatives and obtains a decree, such a decree, even in the absence of fraud, will not be binding against the true representatives or heirs of the deceased. This principle clearly governs the present case. The learned Subordinate Judge has failed to consider the vital questions in this case which are in a narrow compass, though he has discussed at length various subsidiary matters. From what he has stated in paragraph 24 of his judgment it seems to us that he took it for granted that the razinama in question should be binding on defendants 3 and 4, if an outsider like the present plaintiff bona fide believed Chengama Naidu to be the legal representative of Govindasami when he entered into it. As we have already pointed out there is no estoppel alleged in the plaint against defendants 3 and 4, nor is it made out in the evidence in respect of the razinama in question. Even assuming that Chengama Naidu (No. 2) was believed to be a legal representative, is it not necessary for the plaintiff to prove the truth and the binding character of the debt specified in the razinama so as to enforce it against the true reversioners or heirs? The need for such proof has been entirely overlooked by the learned Subordinate Judge. We cannot, therefore, accept his finding on the second issue. We are clearly of opinion that the plaintiff has failed to make out that the razinama decree in O.S. No. 26 of 1920 relates to a true debt binding upon the reversioners to the estate of Govindasami or the heirs of Venkatamma. Consequently, the plaintiff is not entitled in this suit to any declaration on the strength of that razinama decree as against the reversioners or heirs.

6. In the result, the plaintiff's claim for a declaration in respect of the amount standing to the credit of the mortgagees in O.S. No. 31 of 1919 on the file of the Sub-Court, Chittoor, should fail, and this appeal is allowed with costs payable by the plaintiff - first respondent. He should pay the costs of defendants 3, 4 and 10 in the Lower Court and bear his own costs. The other defendants will bear their own costs.


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