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Majeti Kasi Viswesra Rao Vs. Pulletikurti Varahanarasimham and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1937Mad631
AppellantMajeti Kasi Viswesra Rao
RespondentPulletikurti Varahanarasimham and ors.
Cases ReferredChinnu Pillai v. Kalimuthu Chetty
Excerpt:
.....of gift and sale. there is also a provision in the will to the effect that whether or not the adoption of suryam is legal the properties have been given to suryam to be enjoyed as of right after his death. the words in the vernacular which have been translated as 'enjoy the properties from son to grandson and so on in succession with powers of gift and sale' are the usual words employed in order to indicate that the entire ownership is to pass. that view is that it is left to the father to determine whether the property which he gives shall be ancestral or self-acquired, and further, that unless there is any expression of intention or wish that the property should be deemed to be self-acquired, it must be held that the property is to be enjoyed as ancestral property. 600. i am not..........them as such, though there was a will in respect of these properties by buchayya in favour of suryam. suryam sold some of the properties under ex. 2 in 1919 to defendant 1 and some other properties under ex. 8 in 1924 to defendant 2. the suit is in effect to recover possession of these properties avoiding the alienations referred to above. the suit was resisted by both the defendants on several grounds, which are reflected in the issues framed by the trial court. except on the issue relating to the adoption of suryam, the findings of the trial court were in favour of the plaintiffs. but on this question of adoption the trial court found that the adoption had not been proved, and as a result of this finding alone, the suit was dismissed by the trial court. the trial court states in.....
Judgment:

Pandrang Row, J.

1. These appeals are from the decree of the Subordinate Judge, Ellore, dated 4th March 1935, reversing on appeal the decree of the District Munsif of Tanuku dated 16th February 1933 in Order S. No. 601 of 1931, a suit in forma pauperis for recovery of certain immoveable properties together with mesne profits by the plaintiffs who were three in number. The plaintiffs are brothers, being the sons of one Suryam who according to them was the adopted son of one Buchayya. The plaint properties were admittedly the self-acquisitions of this Buchayya, and the plaintiffs' case was that their father Suryam took these properties as joint family properties and enjoyed them as such, though there was a will in respect of these properties by Buchayya in favour of Suryam. Suryam sold some of the properties under Ex. 2 in 1919 to defendant 1 and some other properties under Ex. 8 in 1924 to defendant 2. The suit is in effect to recover possession of these properties avoiding the alienations referred to above. The suit was resisted by both the defendants on several grounds, which are reflected in the issues framed by the trial Court. Except on the issue relating to the adoption of Suryam, the findings of the trial Court were in favour of the plaintiffs. But on this question of adoption the trial Court found that the adoption had not been proved, and as a result of this finding alone, the suit was dismissed by the trial Court. The trial Court states in its judgment that, otherwise its decree would have been to the effect that Ex. 2 would be valid only to the extent of a half share owned by Suryam and that Ex. 8 would be valid. only to the extent of one. fourth share owned by him. On appeal by the plaintiffs, the learned Subordinate Judge differed from the trial Court as regards the question of adoption, and found that the adoption was true and valid. He accordingly allowed the appeal and decreed that the plaintiffs were entitled to recover three-fourths share of the properties covered both by Exs. 2 and 8 with mesne profits on that three-fourths share at Rs. 45 a year. The present appeals are by the two defendants, S.A. No. 265 of 1935, being the appeal by defendant 2 and Section A. No. 361 of 1935 being by defendant 1.

2. No attempt whatever has been made in these appeals to question the correctness of the finding of the lower appellate Court on the question of adoption. I must therefore proceed on the basis that the adoption has been proved and consider whether in view of that finding, the judgment appealed from is wrong. The first question that arises for decision in both these appeals is whether the plaint properties were taken by Suryam as joint family properties or whether they are his self-acquired properties. It is common ground that the properties which were admittedly self, acquired properties of Buchayya, his adoptive father, came to him not by way of succession but by virtue of the will executed in 1911 by Buchayya, Ex. I. That will recites the fact that the testate had adopted Suryam and performed his marriage and that therefore Suryam should be the owner of all his properties, moveable and immoveable and enjoy the same from son to grandson and so on in succession with powers of gift and sale. There is also a provision in the will to the effect that whether or not the adoption of Suryam is legal the properties have been given to Suryam to be enjoyed as of right after his death. It is clear from the will that the intention of the testator was that the properties should go to his adopted son Suryam, and it was only to makee assurance doubly sure that he further provided that even if the adoption were found to be not legal, Suryam was to get the properties all the same. Now that it has been found that Suryam was validly adopted by the testator, it must be taken that the properties were given by Buchayya by will to his adopted son. The words in the vernacular which have been translated as ' enjoy the properties from son to grandson and so on in succession with powers of gift and sale' are the usual words employed in order to indicate that the entire ownership is to pass. They do not show in my opinion any intention on the part of the testator as to whether his adopted son, the legatee, is to take the properties as self, acquired properties or as joint family properties.

3. On the question whether self-acquired property bequeathed by a Hindu father to his son is the separate property of the son or whether it is ancestral in his hands as regards his sons, there is a difference of opinion between the different High Courts, which is referred to by their Lordships of the Judicial Committee in Lalram Singh v. Deputy Commissioner, Pratapgarh AIR 1923 PC 160. The question cannot be said to be absolutely settled as their Lordships of the Judicial Committee declined in that case to settle the difference of opinion, but deferred it to a later occasion. Till their Lordships of the Judical Committee settle this difference, I am bound to follow the view that has been adopted and followed in Madras ever since Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad 429 and that view is against the appellants. That view is that it is left to the father to determine whether the property which he gives shall be ancestral or self-acquired, and further, that unless there is any expression of intention or wish that the property should be deemed to be self-acquired, it must be held that the property is to be enjoyed as ancestral property. In the particular will, Ex. 1, there lis nothing from which any intention can be gathered of Buchaya's wish or intention that the properties were to be the self-acquired properties of Suryam. I am therefore unable to accept the arguments on the side of the appellants or to dissent from the conclusion arrived at by the lower appellate Court on this question, viz., that the properties must be deemed to be ancestral properties in the hands of Suryam.

4. Both the Courts below have found accordingly that the sale deeds Exs. 2 and 8 are not valid and binding on the plaintiffs. In Ex. 2, the consideration is stated to be Rs. 1,460 and the only portion thereof which can be said to have been utilized for any debt binding on the plaintiffs is the amount covered by Ex. 5, that is to say, about Rs. 152. As regards the other alienation, Ex. 8 out of the total consideration of Rs. 1,900, Rs. 600 is said to have been required for the purpose of paying off an antecedent debt of Suryam due to one Veeracharyulu. But it would appear that even this debt was not paid by Suryam out of the consideration received by him. In any case, I see no reason to differ from the concurrent findings of both the Courts below that neither of these deeds of sale is binding on the plaintiffs and that plaintiff 1 in any case who had been born long before even Ex. 2 is entitled to ignore them.

5. In this connexion, it has been argued that even if the sales are invalid and not binding on the plaintiffs, the alienees are entitled to some equities, defendant 1 in respect of Ex. 2 to the extent of Rs. 152 and defendant 2 in respect of Ex. 8 to the extent of at least Rs. 600. I am not satisfied that these equities exist in the present case. It has not been shown that the debts in question which were due by Suryam, viz., a debt of Rs. 150 under Ex. 5 and the debt of Rs. 600 due to Veeracharyulu could not have been paid from Suryam's share of the consideration. The sales are of course valid so far as the share of Suryam is concerned and this share was sufficient to satisfy both these debts. It is not possible therefore to say that the sons' shares have in any way been benefited by reason of the payment of these debts. The sons' obligation to pay their father's debts ceases to exist when the father's debt has been discharged. That obligation also can be enforced against the sons only by the creditor. In this case, the defendants are not the creditors. Defendant 2 certainly does not stand in the shoes of the creditor because it is not his case that he has paid the creditor of Suryam, viz., Veeracharyulu, at any time. This claim to equity is moreover put forward for the first time in second appeal. There is no reference to it in the judgments of either of the Courts below and I do not think it is possible to adjudicate upon this claim in second appeal in the absence of sufficient material.

6. The only other point that arises for determination in these appeals is the share that can be claimed by defendant 1 under Ex. 2. On this point, the trial Court was of opinion that the share was one half, that is, the share which was owned by Suryam, the vendor at the time of Ex. 2. The lower appellate Court however thought that Muthukumara Sethupathiar v. Sivanarayana Pillai AIR 1933 Mad 158, was authority for the position that the share should be calculated with reference to the time when the suit was brought and not at the time when the alienation took place and accordingly held that even as regards Ex. 2, the plaintiffs' share was three-fourths and Suryam's share only one-fourth. I am of opinion that this view adopted by the lower appellate Court is not correct. The law on the subject is practically settled in this Presidency ever since Chinnu Pillai v. Kalimuthu Chetty (1912) 35 Mad 47, and that decision has been followed in a number of subsequent cases, and I see no reason whatever for not following what has been accepted as settled law for so many years. The law as stated there is that the share is to be determined as on the date of the alienation, and it follows from this that the share to which defendant 1 is entitled is one half and the other half alone can be claimed by the plaintiffs so far as the properties concerned in Ex. 2 are concerned, that is, plaint item 1. The appeal by defendant 1 therefore succeeds as regards this point. It follows as a consequence that the mesne profits awarded by the lower appellate Court should be reduced from Rs. 45 a year to Rs. 30 a year so far as this item is concerned. In other respects, this appeal of defendant 1 fails. The other second appeal fails altogether and is dismissed with costs. In the appeal by defendant 1, viz., S.A. No. 361 of 1935, parties will bear their own costs. Leave to appeal refused.


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