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(Devavarapu) Venkataramayya Vs. (Devavarapu) Venkatappayya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1930Mad337
Appellant(Devavarapu) Venkataramayya
Respondent(Devavarapu) Venkatappayya and ors.
Cases ReferredParbati v. Nannihal Singh
Excerpt:
- - it was proved in that case that the husband was very rich. the privy council held that the fact that the husband was rich did not in any way go to prove that the property in the possession of the widow was the property of the husband......four in number, filed the original suit for partition and delivery of four out of seven shares in the property described in the plaint schedule, which the plaintiffs allege belonged to one chandrayya, the last male holder. chandrayya died about 1876 leaving a widow punnamma. punnamma died on 24th march 1924, and the present suit for partition was filed on 2nd may 1924. defendant 4 and defendants 1 and 2 are cousins of the plaintiffs and are according to the plaintiffs the other three sharers who are entitled to the other three shares in the property as reversioners to the estate of chandrayya.2. the main pleas of the appellant, who was defendant 2 in the lower court, were that the properties did not belong to chandrayya and that defendant 2 had been adopted to chandrayya after.....
Judgment:

Anantakrishna Aiyar, J.

1. Defendant 2 is the appellant before me. The plaintiffs, four in number, filed the original suit for partition and delivery of four out of seven shares in the property described in the plaint schedule, which the plaintiffs allege belonged to one Chandrayya, the last male holder. Chandrayya died about 1876 leaving a widow Punnamma. Punnamma died on 24th March 1924, and the present suit for partition was filed on 2nd May 1924. Defendant 4 and defendants 1 and 2 are cousins of the plaintiffs and are according to the plaintiffs the other three sharers who are entitled to the other three shares in the property as reversioners to the estate of Chandrayya.

2. The main pleas of the appellant, who was defendant 2 in the lower Court, were that the properties did not belong to Chandrayya and that defendant 2 had been adopted to Chandrayya after Chandrayya's death by his widow. Both the lower Courts held against the defences set up by defendant 2, and the first contention has been reiterated before me hers. Both the lower Courts held against the validity of the adoption and that question is not before me in second appeal.

3. The substantial ground taken in second appeal before me by the learned advocate for the appellant Mr. Lakshmanna is this. The onus of proving that the property claimed by the reversioners was the property of the last male holder is heavily upon the plaintiffs. There is no presumption that any property in the possession of a Hindu widow or Hindu female was the property of either her husband or any male ancestor. I agree that this proposition could not possibly be contested. The leading case on the subject is the decision of the Privy Council in Dewan Run Bijai Buhadur Singh v. Indarpal Singh [1899] 26 Cal. 871, where their Lordships had to consider the case of a Hindu widow in possession of large properties. It was proved in that case that the husband was very rich. The privy Council held that the fact that the husband was rich did not in any way go to prove that the property in the possession of the widow was the property of the husband. The privy Council held that the onus of proof was on the reversioners, and he had to prove that the property claimed by him was property belonging to the estate of the last male holder as reversioner to whose estate, he claims the property. This decision was followed by a Bench of this Court, consisting of Spencer and Srinivasa Iyengar, JJ. In Vikrama Deo Garu v. Vikrama Deo Maharajulugaru [1918] 33 M.L.J. 665, where their Lordships went further and observed that the presumption that a person in possession of property is the owner and absolute owner thereof applied equally to Hindu women also. It is therefore clear that the onus in the present case lies heavily on four plaintiffs who, as reversioners, claim their 4/7ths share of the suit properties. On such proof that these properties were the properties of Chandrayya, both the lower Courts found that the plaintiffs are entitled to their shares of the properties.

4. The learned advocate for the appellant criticized minutely the arguments and reasonings by which the lower Courts have arrived at their conclusions and he took me though the evidence of P. W's. 1, 2 and 3, on whose evidence the lower Courts have largely relied. Left to myself, I may not be in a position to come to the conclusion of the oral evidence in this case that the properties have been proved to have belonged to Chandrayya. The evidence of P.W. 1 shows that Chandrayya died about 1876 some months after P.W. 1's father sold him the lands, and that his father told him that the properties were sold very cheap. As I understand, my function, sitting in second appeals, is not to appreciate the evidence and to come to any independent conclusion on my own account on questions of fact arising in the case. The Privy Council in Durga Chowdharani v. Jewahir Singh Chowdhri [1891] 18 Cal. 23, held that the findings of the 1st appellate Court based on relevant evidence before it cannot be disturbed by a Court sitting in second appeal, however erroneous or unsatisfactory the findings, if examined, might be: see also Ravi Ratan Sukal v. Nandu [1892] 19 Cal. 249. I am bound by the said rulings when examining the question of the correctness of the findings of fact arrived at by the lower appellate Court in this case. When the lower Courts have believed P.W. 1 the son of the vendor to Chandrayya to the effect that P.W. 1's father sold these properties to Chandrayya, I do not think I can interfere with that finding. There are also other reasons mentioned by the District Munsif to show that the properties have been proved to belong to Chandrayya.

5. Two circumstances have been mentioned in the lower Courts' judgment (1) the prior suits O.S. No. 109 of 1913 and O.S. No. 165 of 1918. These were brought by the reversioner, and the Courts held that the adoption was invalid and that the suit properties belonged to the estate of Chandrayya; and (2) there is also the circumstance that soon after the alleged adoption of defendant 2 by Punnamma, she transferred the patta of these properties in the name of defendant 2, the alleged adopted son. The lower Courts argue that ordinarily a Hindu widow would not transfer her own stridhan or separate properties to the adopted son; and taking all the circumstances of the case into consideration they drew the inference that the properties were not the stridhanam properties of Punnamma, and the fact that she transferred the patta in the name of defendants was an indication that the suit properties belonged to Chandrayya, and not to herself as her stridhanam. As I said, I am not concerned here to examine the evidence in detail myself to see whether I would myself be prepared to act upon the same or not. There are items of evidence which the lower Court have believed and as pointed out by the Privy. Council in Parbati v. Nannihal Singh [1909] 31 All. 412, the proper and satisfactory way of appreciating evidence would be to consider, not whether each piece of evidence proved the case by itself, but to consider the cumulative effect of all the relevant items of evidence adduced in the case. As it seems to me that the lower Courts have considered the cumulative effect of the evidence and expressed their opinion that it has been sufficiently proved that the properties belonged to Chandrayya, I am not in position to interfere with the findings of fact in second appeal.

6. The last argument of the learned advocate for the appellant is that the lower Courts were wrong in having given a decree not only for the four-sevenths shares of the plaintiffs but also in having allotted the other remaining three shares to defendants 1, 2 and 4. The suit was one for partition and delivery of four out of seven shares of the estate to the four plaintiffs who with defendants 1, 2 and 4, are the reversionary heirs to the estate; the other three heirs were made defendants 1, 2 and 4. The first Court passed a decree as mentioned above. The contesting defendant 2 preferred an appeal against the said decree. But I do not find that this point was taken on appeal to the lower appellate Court, Seeing that Punnamma died only in 1924, and the rights of the three defendants entitled to the three shares are not barred by limitation, and that no objection was taken to this in the lower Courts, I think I would not be justified in disturbing this portion of the decree in second appeal. I, however, modify the decrees of the lower Courts by declaring that each of defendants 1, 2 and 4 would be entitled to one share (out of the seven shares) in the suit properties and that the share of each would be separated and delivered to each in this suit on paying the proper court-fee payable thereon.

7. In the result, I find against the main contentions of the learned advocate for the appellant and dismiss the second appeal with costs.


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