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Panda Patyya Vs. Panda Venkamma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1915Mad1182; 29Ind.Cas.54
AppellantPanda Patyya
RespondentPanda Venkamma and ors.
Cases ReferredHari Kishen Bhagat v. Kashi Pershad Singh
Excerpt:
hindu law - widow--adoption with consent of reversioner, if invalid for want of authority--authority, when can be presumed--illatom adoption--quantum of proof--charge created by widow--necessity--burden of proof--nature of evidence. - .....son of venkatadri. some farfetched suggestion was made that after the death of venkataramayya, the widow of venkatadri, because this hoy married her grand-daughter, was anxious to pass him off as an adopted boy when he was not one. but this is an explanation which we are unable to accept. the fact that, while he was merely a boy incapable of defending his own interests, we find he was recognized as adopted son, is strong evidence to show that he was such. he died very soon about, june 1881.3. before referring to what followed, it is necessary to deal with the position of the 2nd defendant's husband pichayya, who, it has also been argued for the defendants, had been taken as an illatom son-in-law by venkatadri at the same time that he adopted venkataramayya. the subordinate judge has.....
Judgment:

1. This is a suit brought by the plaintiff to declare that the sale of the properties, items Nos. 1 to 23 in the Schedule to the plaint, to the 3rd defendant, in execution of the decree in Original Suit No. 329 of 1893 of the Court of the District Munsif of Ongole against one Venkamma, the widow of one Rangayya, is not binding on the plaintiff's reversionary right to these properties. The suit is on the footing that Rangayya was adopted by Ademma, the widow of one Venkatadri, after the death of Venkatadri and of Venkataramayya, Rangayya's brother, whom Venkatadri had himself adopted during his life-time. Venkataramayya died after Venkatadri; and according to the evidence for the plaintiff Lakshminarasu, Rangayya's father, being then the next reversioner and there being no other reversioner in the same degree, gave his son Rangayya in adoption to the widow. The Subordinate Judge has found among other things that this adoption was bad for want of authority, although it was made with the consent of the nearest reversioner. We are unable to agree with this. We think that the circumstances indicate, and we are entitled to presume, that in giving his son to the widow the next reversioner was fully conscious of what he was doing and was mindful of all those considerations which a reversioner, ought to take into account in such circumstances. It must be borne in mind in this case that there is no question that he was in any way actuated by any representation by the widow that her husband had given her authority to adopt. It was not suggested that her husband had given her any authority, but he had shown his desire that his lineage should be continued by himself adopting a son in his life time. No authority has been cited to induce us to hold that a consent given in such circumstances is insufficient.

2. The Subordinate Judge, however, has also held that it is not proved that the adoption took place. On a careful consideration of the evidence we are unable to agree with this conclusion. The adoption is said to have taken place in March 1876, and within the next three years we have three registered documents, Exhibits B, C and H, Exhibits H and C being mortgages and Exhibit B, a sale deed, in which Rangayya is spoken of as the adopted son of Venkatadri. Some farfetched suggestion was made that after the death of Venkataramayya, the widow of Venkatadri, because this hoy married her grand-daughter, was anxious to pass him off as an adopted boy when he was not one. But this is an explanation which we are unable to accept. The fact that, while he was merely a boy incapable of defending his own interests, we find he was recognized as adopted son, is strong evidence to show that he was such. He died very soon about, June 1881.

3. Before referring to what followed, it is necessary to deal with the position of the 2nd defendant's husband Pichayya, who, it has also been argued for the defendants, had been taken as an illatom son-in-law by Venkatadri at the same time that he adopted Venkataramayya. The Subordinate Judge has disbelieved the three witnesses who purported to speak to this taking in illatom by Venkatadri in his lifetime, and we are unable to say that he was wrong in this conclusion It is very easy for men who have married into a family to set up a claim to a share of the family property on the footing that they have been taken as illatom, son-in law; but such contentions require to be proved by very reliable evidence, as they are claims which is very easy to set up and which apparently there is a great temptation to set up. Now, after the death of Venkatadri, there are three documents, Exhibits XXII, XX (b) and XX (c), on which the defendants rely, as negativing the adoption of Rangayya and also as supporting the illatom claim of Pichayya. After Venkatadri's death Pichayya in 1876 and 1877 got three unregistered bonds, Exhibits XXII, XX (b) and XX (c), executed in his favour for a balance of indebtedness clue to Venkatadri. How he got them is not shown. It may be that he induced some of these debtors to give them to him with a view of his making them evidence in support of his claim to be an illatom son-in-law.

4. To go back now to what happened after the death of Rangayya when the 1st defendant, his widow, became entitled to the estate if he were really the adopted son of Venkatadri, we find a series of documents, Exhibits XIX, XIX (a), XIX (b) and XX, one of them a mortgage and the others simple bonds, and then we have another series of documents, Exhibits V, III, IV, XXII, XVIII and I, between January 1887 and December 1892, documents executed by Venkamma, the widow of Rangayya, and Pichayya, without saying in what character they executed those documents. It seems to us that those documents afford some recognition of the Widow's right, though at the same time they show that Pichayya was seeking to set up his illatom right, but if the adoption had not been notorious, it is not likely that he would have brought in Venkamma at all. Then we come to Exhibit A of the 3rd December 1894. That is a document executed by Venkamma in favour of Pichayya, in which she distinctly states that she was, the widow of Rangayya, who had been adopted by Venkatadri. It looks as if at this time the widow had come entirely under the influence of Pichayya and she purports to recognise the illatom sonship and to renounce all her rights in the property in his favour. The various documents executed by Venkamma and Pichayya resulted in two decrees which were obtained against them both in two suits of 1893, and it was when those decrees were sought to be executed, that the plaintiff, the alleged next reversioner, filed his suit in 1905. That suit was held to be premature on the ground that there was no cause of action. Subsequently some of the properties belonging to the estate were attached and sold in execution of these decrees and that gave the plaintiff his cause of action, to sue for a declaration that those sales are not binding on the properties beyond the life-time of the widow. If there had been no adoption of Rangayya, then the estate would have devolved on Ademma, the widow of Venkatadri, who died in 1892, and as the suit was not brought till 1908, it would have been barred. It is not contended, however, that if the adoption was valid a suit like this would be barred in the life-time of the 1st defendant, the widow of the last male owner.

5. Then the next question is whether the plaintiff is entitled to the declaration asked for. It has been authoritatively laid down quite recently by the Privy Council that 'to be valid as against the reversioners, or to affect their reversionary rights, a charge by a Hindu widow, or an alienation effected by her, can be supported only by proof aliunde that such debt was contracted, or alienation was made, for valid and legal necessity and the onus of establishing such necessity rests heavily on the person who claims the benefit of transactions with a Hindu widow or other females taking similar estates'. Hari Kishen Bhagat v. Kashi Parsad Singh 28 Ind. Cas. 674 : 17 M.L.T. 115. Applying that law to the circumstances of this case we are unable to agree with the Subordinate Judge that that onus had been discharged. All we have really is a series of documents executed by this woman Venkamma and Pichayya and two further facts are relied on to show that there was necessity: one that she maintained in her house a large number of persons related to her but not belonging to her husband's family, for whose support she was obliged to run into debt: and the other is that most of these documents by which money was raised were attested either by the plaintiff or his deceased brother, who at that time was co-reversioner. In this very case, Hari Kishen Bhagat v. Kashi Pershad Singh 28 Ind. Cas. 674 : 17 Bom. L.R. 426 : 2 L.W. 219 : 17 M.L.T. 115 which I have just cited, their Lordships of the Privy Council have emphatically pointed out that great care must be used in drawing inference of consent to alienations of a widow from the fact that the reversioners attested the documents executed by her, because that is perfectly consistent with an expectation that those documents should only bind the widow's estate. Beyond this no attempt has been made to show that these debts were incurred for any necessary purpose and we must hold that the defendants have failed to establish the burden which is upon them, and we must reverse the decree of the lower Court and decree the suit with costs throughout.


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