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Avararala Venkata Seshamma Vs. Avararala Appa Rao and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in80Ind.Cas.79
AppellantAvararala Venkata Seshamma
RespondentAvararala Appa Rao and anr.
Cases ReferredKaruppai Naohiar v. Sankaran Narayanan Chetty
Excerpt:
hindu law - inheritance--mitakshara law--property inherited from maternal grandfather--nature of--adopted son, whether has right of survivorship. - .....learned vakil for the appellant is the decision in bishwanath prasad sahu v. gangadhar prasad 48 ind. cas. 870 : 8 p.l.j. 168 : 8 p.l.w. 286 : (1917) pat. 356. practically it adopts the same reasoning as jamna prasad v. ram partab 29 a.p 667 : 4 a.l.j. 582 : a.w.n. (1907) 211 and there is no other reasoning. i think we must follow the view adopted in karri ramayya v. vellori jagannadham 80 ind. cas. 899 : 89 m.p 980 : 2 l.w. 874 : 18 m.l.t. 860 : (1915) m.w.n. 838, and vythinatha aiyar v. aiyar yeggianarayana aiyar 27 m.k 882 based as they are on a full consideration of the effect of the decision in venkayyamma garu v. venkataramayyamma bahadur garu 25 m.p 678 : 4 b.l.r. 657 : 7 c.w.n. 1 : 12 m.l.j. 299 : 29 i.a. 156 with the principles laid down in jogeshwar narain deo v. ramachandra.....
Judgment:

1. In this case the 1st defendant is the appellant before us. The suit was brought by the plaintiff for a declaration that the property which was the subject of the suit did not belong to the 1st defendant, but belonged to the 2nd defendant and was, therefore, liable to be attached by the plaintiff in execution of a decree obtained by him against the 2nd defendant. The 1st defendant is the wife of the 2nd defendant. She claims the property under a will of her mother-in-law to whom it was conveyed by a sale-deed Ex. VII, dated 23rd February 1914 by the second defendant's father Venkataratnam. It is the case of all the parties that the property originally belonged to Venkataratnam's maternal grand-father and devolved on him as daughter's son, Vide Ex. XIX.

2. The first point argued by the appellant before us is that when the 2nd defendant was adopted by his father there was an agreement according to which the adopted son should not share with the father in the properties the latter obtained from his maternal grandfather. This agreement was found against by the Court below. We agree with this finding. The adoption must have taken place many years ago and certainly long before the Jaggampett case was reported. And an agreement between the adoptive father and adopted son that the adopted son should not be co-parcener in the property obtained by the father from his maternal grandfather was inconceivable at the time. The only evidence adduced in support of the agreement is that of P.W. 1. He is the father of the 1st defendant and, therefore, interested. He admits there is nothing in writing about the conditions before adoption. The only other circumstance relied on by the learned Vakil for the appellant in support of the agreement is that the property was enjoyed by the father alone. But when the facts are examined, this statement really has no significance. The father and son were joint up to 1912 and during their jointness naturally it was the father that managed the property. Disputes arose between the father and the son and they became divided in status in that year and in 1914 the father conveyed the property to his wife under the sale-deed EX. VII. So all that is left to us to form a material for inferring any agreement at the date of adoption is merely one year's enjoyment. This contention of the appellant must, therefore, be disallowed.

3. The second point argued by the appellant is that the sale-deed, EX. VII, is binding on the 2nd defendant. We do not see how this contention' can be supported. It is a sale-deed by the father after the separation in status between him and his son, and apart from any question of consideration it cannot bind the son to the extent of the son's share.

4. The third point argued for the appellant is that the property is not joint family property in the hands of Venkataratnam in the sense that the 2nd defendant has a right in it as a co-parcener by adoption (adoption corresponds to birth here) though it may be ancestral property and liable to the incidents of survivorship between Venkataratnam and his brother, if any, according to the decision of the Privy Council in Venkayamma, Garu v. Venkata-ramayyamma Bahadur Garu 25 M.P 678 : 4 B.L.R. 657 : 7 C.W.N. 1 : 12 M.L.J. 299 : 29 I.A. 156. This point has been decided against; the appellant in Vythinatha Aiyar v. Yeggianarayana Aiyar 27 M. 882 where the effect of Venkayamma Garu v. Venkataramanayyamma Bahadur Garu 25 M.P 678 : 4 B.L.R. 657 : 7 C.W.N. 1 : 12 M.L.J. 299 : 29 I.A. 156 was considered. The point was raised again and decided by another Bench of this Court in Karri Ramayya v. Vellori Jagannadham 80 Ind. Cas. 899 : 89 M.K 980 : 2 L.W. 874 : 18 M.L.T. 860 : (1915) M.W.N. 838. The learned Vakil for the appellant in that case relied on Jamna Prasad v. Ram Portap 29 A.P 667 : 4 A.L.J. 582 : A.W.N. (1907) 211 where a conclusion different from that in Vythinatha Aiyar v. Yeggianarayana Aiyar 27 M.P 882 was arrived at, and suggested a reference to a Full Bench. But their Lordships, Coutts Trotter and Spencer, JJ' on a consideration of the then authorities including the Privy Council decision reported in Atar Singh v. Thakar Singh 6 Ind. Cas. 721 : 35 C.P 1089 : 42 P.R. 1910 : 128 P.W.R. 1908 : 85 I.A. 206 : 12 C.W.N. 1049 : 8 C.L.J. 859 : 10 Bom. L.R. 790 : 18 M.L.J. 879 : 4 M.L.T. 207 a case arising under the Punjab Customary Law, held that the matter was settled and did not refer the case to a Full Bench. The only additional authority that is now brought to our notice by the learned Vakil for the appellant is the decision in Bishwanath Prasad Sahu v. Gangadhar Prasad 48 Ind. Cas. 870 : 8 P.L.J. 168 : 8 P.L.W. 286 : (1917) Pat. 356. Practically it adopts the same reasoning as Jamna Prasad v. Ram Partab 29 A.P 667 : 4 A.L.J. 582 : A.W.N. (1907) 211 and there is no other reasoning. I think we must follow the view adopted in Karri Ramayya v. Vellori Jagannadham 80 Ind. Cas. 899 : 89 M.P 980 : 2 L.W. 874 : 18 M.L.T. 860 : (1915) M.W.N. 838, and Vythinatha Aiyar v. Aiyar Yeggianarayana Aiyar 27 M.K 882 based as they are on a full consideration of the effect of the decision in Venkayyamma Garu v. Venkataramayyamma Bahadur Garu 25 M.P 678 : 4 B.L.R. 657 : 7 C.W.N. 1 : 12 M.L.J. 299 : 29 I.A. 156 with the principles laid down in Jogeshwar Narain Deo v. Ramachandra Dutt 23 C.P 670 : 28 I.A. 87 : 7 Sat. P.C.J. 13 : 6 M.L.J. 76 : 12 Ind. Dec. (N.S) 445 and Sudarsanam Maistri v. Narasimulu Maistri 25 M.P 149 : 11 M.L.J. 358 and the Full Bench decision in Karuppai Naohiar v. Sankaran Narayanan Chetty 27 M.P 300 : 13 M.L.J. 398.

5. The appeal fails and is dismissed with costs. The Memorandum of objections is dismissed with costs.


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