THE HON'BLE SRI JUSTICE M. LAXMAN
SECOND APPEAL Nos.862 OF 2006 AND 43 OF 2009
COMMON JUDGMENT:
1. Both these appeals arise out of same suit as such, they are being
taken up for disposal by way of this common judgment.
2. S.A.No.862 of 2006 and S.A.No. 43 of 2009 have been directed
against the judgments and decrees dated 28.04.2006 in A.S.Nos.66 and 65
of 2004 respectively, on the file of the Special Judge for trial of offences
under SC/ST (POA) Act-cum-V Additional District and Sessions Judge,
Medak at Sangareddy (for short 'lower appellate Court'). A.S.Nos.66 and
65 of 2004 were directed against the judgment and decree dated
25.06.2004 in O.S.No.123 of 1991 on the file of the Senior Civil Judge at
Sangareddy (for short, trial Court). The said appeals were dismissed. The
said suit was filed by the appellant in S.A.No.862 of 2006 for partition and
separate possession in respect of the suit schedule A to C properties. The
said suit was partly decreed allowing alternative relief and disallowed the
main relief and rest of the claims.
3. The appellant in S.A.No.862 of 2006 is the plaintiff and the
respondents therein are the defendants in the suit. Defendant Nos.19 to
22 in the suit have filed S.A.No.43 of 2009 against the plaintiff and other 2 ML,J SA_862_06 & 43_09 defendants. For the sake of convenience, the parties hereinafter are referred to as they were arrayed in the suit.
Pleadings of plaintiff:
4. The sum and substance of the case of the plaintiff is that Shiva Reddy (defendant No.6) is the natural father of plaintiff. The plaintiff is adopted son of Ranga Reddy (defendant No.1), who is the elder brother of Shiva Reddy. The said adoption took place in the year 1969. The adoptive father married one Smt.Lingamma (first wife). When no children were born through Smt.Lingamma, he married Smt.Kistamma (defendant No.2). The 1st defendant performed marriage of plaintiff and in the wedding card, his name was shown as father of plaintiff.
5. The suit schedule-A properties, which consist of agricultural lands admeasuring Ac.176-14 guntas, house properties, cattle shed, rice mill and gold, silver, copper, brass and wooden articles, are the ancestral and jointly acquired properties of defendant No.1 and his three brothers Veera Reddy (died), Shiva Reddy (defendant No.6) and Buchi Reddy (defendant No.9). The suit schedule-B properties, which consist of agricultural lands admeasuring Ac.10-00 guntas situated Cheriyal Village, Sangareddy Mandal, Medak District, were acquisitions of late Smt.Lingamma (first wife of defendant No.1). The suit schedule-C 3 ML,J SA_862_06 & 43_09 properties, consisting of agricultural lands admeasuring Ac.9-00 guntas Cheriyal Village, Sangareddy Mandal, Medak District, were acquired by Smt.Kistamma (defendant No.2) from her maternal side.
6. It is claimed by the plaintiff that defendant No.1 is having 1/4th share in suit schedule-A properties. Defendant No.1 filed declarations before the Land Reforms Tribunal (for short, Tribunal) in C.C.No.1674/S/75 declaring that the plaintiff is the adopted son; the properties are the ancestral properties and the plaintiff and 1st defendant were having half share each. Further, in the declaration, the lands in Sy.No.90 were referred as plaintiff's lands which were purchased by first wife of defendant no.1 in the name of plaintiff. The Tribunal, basing on such declaration and the evidence let in by the declarant (defendant No.1) passed order dated 14.04.1977 dividing 1/4th share held by defendant No.1 in the suit schedule-A properties into two half shares. Accordingly, the plaintiff is entitled for half share which is 1/16th share in the suit schedule-A properties. After the death of defendant No.1, the plaintiff amended the claim laying claim for 1/4th share in the suit schedule-A properties being the only surviving legal heir (adopted son) of defendant No.1.
4 ML,J
SA_862_06 & 43_09
7. The pleadings in the plaint further show that on account of old age of defendant No.1, the other agnates have poisened the mind of defendant No.1, due to which, defendant No.1 threatened the plaintiff that he would execute a Will deed distributing the properties to third parties. Due to this, there were differences between the plaintiff and defendant No.1. A panchayat was also held in the presence of elders and in the panchayath defendant No.1 again threatened that he would not give any piece of land to the plaintiff. Under those circumstances, the present suit has been filed.
Pleadings of Defendants:
8. Defendant No.1 filed his written statement. After the death of defendant No.1, his wife i.e. 2nd defendant filed written statement. Defendant Nos.3 and 4 filed a common written statement. Defendant Nos.6 to 8 filed a common written statement supporting the plaintiff's claim of adoption and entitlement of plaintiff in the suit properties. Defendant Nos.5, 9 and 10 filed a common written statement. Defendant Nos.13 and 15 adopted the written statement of defendant Nos.3 and 4.
9. Defendant No.22 filed separate written statement pleading that Konda Reddy, who is one of the brothers of Ranga Reddy (D-1), Veera 5 ML,J SA_862_06 & 43_09 Reddy (died), Shiva Reddy (D-6) and Buchi Reddy (D-9), is also having share in the suit schedule properties since the suit schedule properties are inherited from late Malla Reddy, who is the father of Konda Reddy and his other brothers.
10. The claim of other defendants, who opposed the claim of the plaintiff, is that suit schedule-A properties are self-acquisitions of Ranga Reddy (D-1), Veera Reddy(died), Shiva Reddy (D-6) and Buchi Reddy (D-9). Defendant No.1 went in illitam to Venkat Reddy in the same village and married his daughter Smt.Lingamma. The suit schedule-B properties are the properties inherited by his wife from her father Venkat Reddy. They also pleaded that Malla Reddy, who is the father of Ranga Reddy, Veera Reddy, Shiva Reddy, Buchi Reddy and Kondal Reddy, was not having any land. After Ranga Reddy went in illitom to Venkat Reddy, with his advise and common labour of other three brothers i.e., Veera Reddy, Shiva Reddy and Buchi Reddy, they acquired the suit schedule-A properties with their own efforts and contributions. Hence, they are holding common ownership and possession over the suit schedule-A properties.
6 ML,J
SA_862_06 & 43_09
11. The defendants, particularly defendant No.2, filed written statements specifically claiming that there is no adoption of plaintiff. The 1st defendant says that first wife of defendant No.1 was against the adoption of children of her husband's brothers on the ground that such adoption would bring difference among brothers in selecting a child. The defendant No.2 was inclined to get the adoption of the child from her parents' side. According to defendant No.2, there was no consent on the part of two wives of defendant No.1 for adoption of children of any brother of defendant No.1. They denied the adoption claim of the plaintiff.
12. Originally, defendant No.1 also filed the written statement claiming that there was no consent from his wives for the adoption. He has also denied the averment that the suit schedule properties are ancestral properties. During the pendency of the suit, before defendant No.1 was examined, he died. Therefore, other defendants were brought on record. According to defendant No.1, during his life time, he had executed a Will deed conveying the properties in favour of the children of his brothers and his wife 2nd defendant.
7 ML,J
SA_862_06 & 43_09
13. Defendant No.1 claimed that there was no valid adoption of the plaintiff. He has claimed that suit schedule-B properties were inherited by his first wife from her father. After the death of his wife's father, the lands were mutated in the name of his wife. After the death of his wife, he has succeeded to such properties. Suit schedule-C properties belonged to defendant No.2 which were acquired from her parents' side. Issues in trial Court:
14. The trial Court, on the basis of the above pleadings, has framed the following issues:
"1. Whether the plaintiff is entitled for partition and separate possession of the suit properties as prayed for?
2. Whether the plaintiff and defendants are co-parceners?
3. Whether the suit properties are the self-acquired properties of defendants?
4. Whether the suit is maintainable for non-joinder of necessary parties?
5. To what relief?"
On 04.12.1996, the following additional issues were framed:
"1. Whether the plaintiff is adopted son of Sri Rangareddy-D1 and entitled for partition and separate possession of the suit lands as prayed for?
2. Whether D1 and his brothers purchased the lands with their own income and they are in possession of the lands of 'A' schedule as 8 ML,J SA_862_06 & 43_09 tenants in common except Kondareddy and plaintiff has no right in the said land to claim any partition?
3. Whether 'B' schedule land belong to the wife of D1 and D1 is absolute owner of said land?
4. Whether the lands retained in 'C' schedule are stridana property of D2 Kistamma and not liable for partition?
5. Whether the Will deed executed by D1 dated 14.10.91, is valid and binding on parties?
6. Whether H.No.5-1-2/2/D/1 is self acquired property of D3?
7. Whether the Court fee paid is insufficient?
8. To what relief?"
Again on 20.01.1998, the following additional issue was framed: "Whether the house No.227 situated at Vemanna Colny at R.C.Puram is acquired out of the income of the suit schedule Sy.No.? and whether is available for partition?"
Evidence of parties:
15. The plaintiff, to support his case, examined P.Ws.1 to 4 and relied upon Exs.A-1 to A-18. The defendants, to support their case, examined D.Ws.1 to 7 and got marked Exs.B-1 to B-23.
Trial Court findings:
16. The trial Court, on appreciation of evidence on record, did not accept the plaintiff's claim of the adoption and accordingly, his main claim for 1/4th share in the suit schedule-A properties was rejected. However, the alternative relief of the plaintiff to grant 1/4th share from natural 9 ML,J SA_862_06 & 43_09 father's (D-6) share (1/4) in the suit schedule-A properties excluding the house property at Sangareddy, which is shown as item No.6 of suit schedule-A properties, is allowed. The claim of the plaintiff for partition in respect of the suit schedule B and C properties was dismissed. The trial Court has also recognized the execution of Will deed and codicils by defendant No.1, which have not been disputed by any of the parties. Hence, the said documents were upheld and rights under such Will and Codicils were also upheld. The claim of Konda Reddy's branch for share in schedule-A was rejected.
17. Aggrieved by the said judgment and decree, the plaintiff filed A.S.No.66 of 2004 and the legal heirs of Konda Reddy filed A.S.No.65 of 2004. Legal heirs of late Buchi Reddy filed cross appeals i.e., A.S.No.3 of 2005 in A.S.No.65 of 2004 and A.S.No.4 of 2005 in A.S.No.66 of 2004 claiming that they alone are entitled to suit schedule-C properties. Findings of lower appellate Court:
18. The lower appellate Court, upon perusing the records, dismissed A.S.Nos.65 and 66 of 2004 confirming the findings of the trial Court and allowed the cross appeals A.S.Nos.3 and 4 of 2005 and granted relief to the legal heirs of Buchi Reddy to succeed in respect of suit schedule-C 10 ML,J SA_862_06 & 43_09 properties. Challenging the same, plaintiff filed S.A.No.862 of 2006 and the legal heirs of Konda Reddy filed S.A.No.43 of 2009. Substantial Questions of Law:
19. This Court has framed the following substantial questions of law:
"(i) Whether the Courts below can nullify the findings, conclusion, orders passed by a competent Court of law concerning adoption i.e., Land Reforms Tribunal, which are subsequent proceedings in view of Sections 10 and 11 of C.P.C?
(ii) Whether it is permissible under law for the Courts below to grant a relief to the respondents in a suit for partition which was dismissed wherein no claims were made as per law?
20. Heard learned counsel for both sides and perused the written arguments filed by both the parties.
Finding on substantial question of law No.(i):
21. The main contention of the learned counsel for the plaintiff is that the plaintiff and defendant No.1 have separately filed declarations before the Tribunal. The claims in declarations and the evidence let in have established the adoption of the plaintiff by defendant No.1. There is a finding from the Tribunal that the suit schedule-A properties are ancestral properties of defendant No.1, and the plaintiff being the adopted son, is entitled to half share in the share of defendant No.1 in respect of suit schedule-A properties. It is also contended that in the Tribunal, the 11 ML,J SA_862_06 & 43_09 adoption deed was produced under Ex.A-13. Purohith and witness to the adoption deed were also examined before the Tribunal apart from examining the plaintiff and defendant No.1 and they all supported the adoption. In the adoption deed, there is a categorical mention that the adoption is done in the year 1969. Basing on such adoption deed and oral evidence, the Tribunal has granted 50% of the lands of ancestral properties of defendant No.1 to the plaintiff. Such findings have attained finality. Hence, the findings of the Tribunal bind defendant No.1 and any person claiming through him. Therefore, such findings operate as res judicata and also estoppel by cause of action. According to him, when defendant No.1 admitted the adoption of the plaintiff before the Tribunal, he cannot turn back and contend that there is no valid adoption. The Courts below have not considered the effect of the order of the Tribunal which clearly demonstrates that the suit schedule-A properties are the ancestral properties and the plaintiff is adopted son and defendant No.1 and the plaintiff are entitled for half share each in the agricultural lands which defendant No.1 got jointly with his other three brothers.
22. The learned counsel for the plaintiff further contended that after the demise of defendant No.1, the other defendants were brought on record either as legal heirs or on the basis of Will deed executed by 12 ML,J SA_862_06 & 43_09 defendant No.1 and they cannot set up any pleading which defendant No.1 could not set up and their case must be under defendant No.1 and they cannot go beyond what defendant No.1 could plead. Finally, he has contended that the findings of the Tribunal bind the civil Court. However, he has fairly agreed that from the evidence led by the plaintiff in the present suit, no fault can be found with the Courts below in rejecting the plaintiff's claim of adoption. However, his contention is that the civil Court cannot re-adjudicate the issue of adoption which is already adjudicated by the Tribunal.
23. The contention of the learned counsel for the contesting defendants, who opposed the adoption, is that the Tribunal has no jurisdiction to decide the validity of adoption. The Tribunal has got a limited jurisdiction and any finding touching the validity of adoption is without jurisdiction and such findings do not bind the defendants. It is further contended that no issue of res judicata is raised before the trial Court by the plaintiff. Such a claim is first time raised in the present second appeals which cannot be allowed. The plea of res judicata must be pleaded and previous pleadings must be placed on record. The brief pleading referred in the order is not sufficient enough to adjudicate the plea of res judicata.
13 ML,J
SA_862_06 & 43_09
24. It is also their contention that the plea of res judicata can also be waived, and in fact, the plaintiff waived such a plea and chose to re-establish his claim of adoption. It is contended that from such evidence adduced by the plaintiff, it is clear that he failed to establish that there is valid adoption. Therefore, there is no issue of res judicata.
25. It is also their contention that the Tribunal is having a very limited jurisdiction to decide the issue whether the adoption claim made by the declarant was on or after 25.01.1951 or before that for the purpose of determination of holding. The Tribunal is not having the jurisdiction to determine the validity of such adoption. The civil Court alone has the jurisdiction to determine such an issue. Therefore, any findings touching the adoption are not binding on the civil Court.
26. It is their further contention that from the evidence on record, there is no valid adoption and Ex.A-13 produced before the Tribunal does not bear the signatures of natural mother of the plaintiff and wives of defendant No.1. Therefore, Ex.A-13 has no relevance and it is self evident of lack of consent of wives of adoptive father and wife of natural father which is essential as per Hindu Adoption and Maintenance Act, which is absent in the present case. According to them, the consent of 14 ML,J SA_862_06 & 43_09 wife of natural father and wives of adoption father is essential for adoption, which is lacking in the present case.
27. It is also contended that the plea of adoption was set up in order to reap the benefit and to escape from the land ceiling consequences and there was no intention to adopt the plaintiff by defendant No.1.
28. In the light of the above submissions, it is apt to refer Section 7 of the Telangana Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short 'Act of 1973'), which reads as follows:
Section 7:- Special Provision in respect of certain transfers, etc. already made:
(1) Where on or after the 24th January, 1971, but before the notified date, any person has transferred whether by way of sale, gift, usufructuary mortgage, exchange, settlement, surrender or in any other manner whatsoever, any land held by him or created a trust of any land held by him, then the burden of proving that such transfer or exaction of trust has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings, shall be on such person, and where he has not so, proved, such transfer or creation of trust, shall be disregarded for the purpose of the computation of the ceiling area of such person.
(2) Notwithstanding anything in sub-section (1), any alienation made by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise, any partition effected or trust created of a holding or any part thereof, or any such transaction effected in execution of a decree or order of a civil court or of any award or order of any other authority, on or after the 2nd 15 ML,J SA_862_06 & 43_09 May, 1972 and before the notified date, in contravention of the provisions of the Telangana Agricultural Lands (Prohibition of Alienation) Act, 1972 shall be null and void.
(3) Where at any time within a period of five years before the notified date, any person has converted any agricultural land held by him into a non-agricultural land, then the land so converted shall be deemed to be agricultural land on the notified date for the purposes of this Act.
(4) Where on or after the 24th January, 1971 but before the notified date,-
(a) any declaration of dissolution of marriage has been made by a court on an application made on or after the 24th January, 1971; or
(b) any other dissolution of marriage in accordance with any law or custom has taken place, then the land held by each spouse immediately before the date of such dissolution shall, for the purpose of this Act, be deemed to be land held on the notified date by the family unit of which they were members immediately before such dissolution.
(5) Where on or after the 24th January, 1971 but before the notified date, any person has been given in adoption, then the land held by such person immediately before the date of such adoption shall, for the purposes of this Act, be deemed to be held on the notified date by the family unit of which he was a member immediately before such adoption.
(6) In every case referred to in sub-section (4) or subsection (5), the computation of the ceiling area shall first be made in respect of the family unit referred to in the said subsection, and after the surrender of the land held in excess of the ceiling area by such family unit, the remaining land held by such divorced spouse or adopted person, as the case may be, shall be included in the holding of such divorced spouse or adopted person, whether as an individual or as a member of a family unit of which such spouse or person has become a member.
16 ML,J
SA_862_06 & 43_09
(7) If any question arises,-
(a) whether any transfer or creation of a trust effected on or after the 24th January, 1971 had been effected in anticipation of, and with a view to avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holdings;
(b) whether any alienation made, partition effected or trust created on or after the 2nd May, 1972 is null and void;
(c) whether any conversion of agricultural land into non-
agricultural land had taken place within a period of five years before the notified date;
(d) whether any dissolution of a marriage had taken place on or after the 24th January, 1971 either on an application made on or after the said date, or in accordance with any law or custom;
(e) whether any person had been given in adoption on or after the 24th January, 1971; such question shall be determined by the Tribunal, after giving an opportunity of being heard to the affected parties, and its decision thereon shall, subject to an appeal and a revision under this Act, be final.
29. The Act of 1973 was passed on 31.07.1972 and it has received the assent of the President on 01.01.1973 and came into force from 01.01.1975. Prior to that, Andhra Pradesh Agricultural Lands Prohibition of Alienation Ordinance was promulgated on 02.05.1972, by which all alienations made from that date have been declared as null and void. Subsequently, such ordinance was replaced by the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972.
30. Section 7 of the Act of 1973 is a special provision. A reading of sub-section (1) to (5) makes clear that on or after 24.01.1971 if any 17 ML,J SA_862_06 & 43_09 transfer or trust is created in respect of agricultural lands before 02.05.1972, the burden is on the declarant to prove that such transfer or creation of trust has not been affected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to reduction in the ceiling on agricultural holdings, and if it is made on or before 02.05.1972, such transfer or creation of trust shall be null and void.
31. Sub-section (4) of Section 7 indicates that any dissolution of marriage on or before 24.01.1971 either in accordance with Court decree or custom, the land held by such spouse immediately before the date of such dissolution shall be deemed to be the holding on the notified date i.e., 01.01.19750 by the family unit of which she was member prior to such dissolution.
32. Similarly, sub-section (5) of Section 7 incorporates that any adoption on or after 24.01.1971, but before the notified date, any person has been given in adoption, the land held by such a person immediately before the date of such adoption shall, for the purposes of this Act, be deemed to be holding on the notified date by the family unit of which he was a member immediately before such adoption.
18 ML,J
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33. Sub-section (7) (e) deals with any question arising touching the above issues, the Tribunal, after giving an opportunity of being heard to the affected parties, shall give its decision and its decision, thereon shall be subject of appeal and a revision under the Act of 1973 and such decision shall be final.
34. A reading of the above provisions, particularly sub-section (4) of Section 7, a limited jurisdiction has been given to the Tribunal to enter into disputed question of fact touching alienation or creation of trust, dissolution of marriage, claim of adoption to see whether such a dissolution and adoption are on or after 24.01.1971 or before that, and whether such adoptions were created in anticipation of with a view to avoiding or defeating the objects of any law relating to reduction in the ceiling on agricultural holdings. Such a question shall be determined by giving opportunity of hearing to the affected parties.
35. In the present case, the wives of defendant No.1 were not parties to the ceiling proceedings and they have not entered into witness box to say that they are the consenting parties to the adoption. Further, the limited jurisdiction of the Tribunal was confined to see whether adoption is on or after 24.01.1971 or prior to that and whether such adoption was made in anticipation to avoid ceiling laws. The Tribunal is not invested with 19 ML,J SA_862_06 & 43_09 power to determine the validity of adoption. Further, the validity of the adoption was not an issue before Tribunal and enquiry was very limited as seen from the manner in which evidence was let in before it.
36. Further, the examination of purohit and witness to the adoption deed and acceptance of adoption claims of the plaintiff and defendant No.1 clearly establish that there was no cross-examination of witnesses and the Tribunal simply recorded the statement on oath. Their evidence was not even tested with any cross-examination. In fact, the Tribunal while accepting Ex.A-13 has not considered absence of signatures of natural mother and adoptive mothers to such a deed.
37. Further, natural mother and adoptive mothers are the affected parties in a decision touching the adoption and they were not put on notice about the claim of adoption. The proceedings before the Tribunal also show that the properties were claimed to be ancestral and there is no enquiry by the Tribunal whether the properties declared before it were acquired by succession from the ancestors. The undisputed evidence including that of natural father of the plaintiff shows that Mallareddy (ancestor), who is the father of defendant No.1, defendant Nos. 6 and 9, was not having any properties of his own or acquired from his father. Therefore, there is no question of ancestral property inherited by his 20 ML,J SA_862_06 & 43_09 sons. There is no enquiry in this regard and simply the claims made were accepted by the Tribunal without going into the source of title of the lands declared before it.
38. The contention of the learned counsel for the plaintiff is that order of the Tribunal operates res judicata and the suit is also barred on the principle of 'cause of action estoppel'. According to him, the findings touching the adoption operate as res judicata. It also operates as cause of action estoppel, for the reason that the cause of action before the Tribunal and the trial Court is one and the same. Therefore, the finding on the previous cause of action bars the subsequent finding on the same cause of action. In support of such contention, he relied upon Bashyam Anjamma v. Narra Satyanarayana (died) by LRs and others.1, V. Srinivas v. APSRTC, Hyderabad.2 Bhanu Kumar Jain v. Archana Kumar.3
39. On the contrary, learned counsel for the defendants has relied upon judgment in Nand Ram (D) through Lrs. And Ors. v. Jagdish Prasad (D) through Lrs.4 to contend that any findings given by the Tribunal or Court having limited jurisdiction for limited purpose do not operate as res 1 2013 (5) ALD 788.
22013 (5) ALD 798.
3(2005) 1 SCC 787.
4AIR 2020 SC 1884.
21 ML,J
SA_862_06 & 43_09
judicata under Section 11 of CPC, though such issue has been directly and substantially in issue in the former suit. He has also relied upon the decision of Apex Court in case of Syed Mohd. Salie Labbai v. Mohd. Hanifa5 to contend that in adjudicating the plea of res judicata, the pleadings in the previous case must be essential and such pleadings cannot be taken from the reference made in the order. Such pleadings are essential to determine such issue and such a plea cannot be raised in the appeal first time.
40. The learned counsel for defendants has also relied upon the decision of Full Court of united A.P. High Court in Katragadda China Anjaneyulu v. Kattragadda China Ramayya6 to contend that the plea of res judicata must be raised in the pleadings or there must be an issue in this regard, and if such plea and issue was raised before the trial Court, such a plea cannot be raised in the appeal. He has also relied upon the judgment of Calcutta High Court in P.C.Ray and Co. (India) Pvt. Ltd. v. Union of India7 to contend that party to the proceedings may waive plea of res judicata and the plea of res judicata can never be a jurisdictional question. He has also relied upon the judgment of the Apex Court in 5 (1976) 4 SCC 780.
6AIR 1965 AP 177.
7AIR 1971 CALCUTTA 512.
22 ML,J
SA_862_06 & 43_09
Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy8 to contend that by erroneous decision if the Court assumes jurisdiction which does not possess under statute, such decision cannot operate as res judicata between the same parties whether cause of action for the previous or subsequent litigation is same or otherwise.
41. In the above background of legal contentions, it is undisputed fact that the plaintiff has not raised plea of res judicata in the pleadings before the trial Court. He has also not asked the trial Court to frame any specific issue touching the issue of res judicata. Such an issue was also not raised in the appeal. He has raised such an issue for the first time in the present second appeals only.
42. The principles made out from the decisions referred herein above clearly demonstrate that the plea of res judicata is not touching the jurisdiction of the Court. The pleadings in the previous proceedings must be essential and there must be such plea in the present proceedings so as to see whether the subject matter and the issue in the previous proceedings and the subsequent proceedings is directly and substantially are same or not.
8
AIR 1971 SC 2355
23 ML,J
SA_862_06 & 43_09
43. In the present case, there are no detailed pleadings, except the plea based on the declarations. Such oral evidence of witnesses before the Tribunal is also tested one. The declarations filed by the plaintiff and defendant No.1, which are on record as Exs.A-1 and A-2, show that the date of adoption pleaded by defendant No.1 is 07.02.1969 and the date of adoption pleaded by the plaintiff is 07.05.1969. The Purohith and the witness who attended the adoption were examined before the Tribunal and they have not clearly stated the date of adoption. The adoption deed is also not containing the signatures of natural mother and adoptive mothers.
44. Further, the cause of actions before the Tribunal and the civil Court are different and distinct. The cause of action before the Tribunal was whether the adoption was prior to 24.01.1971 or subsequent and whether such adoption is to avoid or defeat the laws relating to ceiling of agricultural lands. There was no issue or cause of action with regard to validity of adoption. In the present case, a specific plea was raised by the defendants that consent of wives of the adoptive father was not obtained, and in fact, they were not willing to adopt from the family of brothers of their husband. The signatures are also not found on the adoption deed 24 ML,J SA_862_06 & 43_09 (Ex.A13). Therefore, the question of cause of action estoppel does not arise.
45. As per the judgment in P.C.Ray and Co. (India) Pvt. Ltd.'s case (supra), the plea of res judicata can also be waived. The pleadings and the conduct of the plaintiff before the Courts below demonstrate that he has chosen to waive the plea and tried to prove his case freshly by his evidence that there was adoption. In fact, by his evidence, he failed to establish that there was a valid consent on the part of the wives of defendant No.1 for the adoption. Both the Courts below found that there was no valid adoption. In the trial Court, one of the witnesses examined by the plaintiff himself stated that the adoption was made in the year 1975, but such witness was declared hostile. Even in the cross- examination also, the said witness categorically stated that just before filing of declarations, the adoption was took place. If this evidence is considered, it is an attempt on the part of the declarants to overcome the consequences of ceiling laws and to get the benefit under the ceiling laws. From the above facts and circumstances, I am of the opinion that the plea of res judicata and issue of cause of action estoppel raised by the plaintiff is unmerited and same is rejected.
25 ML,J
SA_862_06 & 43_09
46. Learned counsel for the plaintiff also has contended that Section 26 of the Act of 1973 bars the jurisdiction of the civil Court to question the order or proceeding issued by the Authority under the Act. In support of his contention, the learned counsel for plaintiff has relied upon Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma9.
47. In this regard, it is apt to refer to Section 26 of the Act of 1973 which reads as under:
"26 - Bar of jurisdiction:
Save as otherwise provided in this Act, no order passed or proceeding taken by an officer or authority under this Act shall be called in question in any suit or application and no injunction shall be granted by any court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act."
48. A reading of the above provision clearly demonstrates that what is barred is questioning of order passed or proceedings taken by the authority constituted under the Act of 1973. The reason is that the Act of 1973 is self-contained by providing appeal and revision.
49. In the present case, the proceedings or order of the Tribunal are not under challenge. In fact, the plaintiff himself filed suit for partition 9 AIR 1997 SC 3082 26 ML,J SA_862_06 & 43_09 with the plea of adoption and the defendants have set up the plea that there is no adoption. In fact, the validity of adoption was not an issue before the Tribunal. The bar contemplated applies only in respect of orders or proceedings when challenged in the Civil Court. The relief claimed in the present suit is not coming under the bar and therefore such a contention has no merit.
50. Now further question is whether Tribunal has made any enquiry with regard to the claim of defendant No.1 that the declared lands are ancestral properties? The evidence before the trial Court demonstrates that the property declared before the Tribunal is not ancestral property. It is everybody's case including the natural father of the plaintiff that the plaintiff's grandfather late Malla Reddy was not owning any lands, and all the lands in the suit schedule-A properties are acquisitions by the four brothers excluding Konda Reddy. No evidence is placed on record to show that suit schedule-A properties were inherited from ancestor of defendant No.1 so as to amount to ancestral properties.
51. The pleadings of the plaintiff also show that the suit schedule-A properties are ancestral-cum-jointly acquired. These pleadings are vague and they did not properly explain how the properties can be ancestral and jointly acquired and which properties are ancestral and which properties 27 ML,J SA_862_06 & 43_09 are jointly acquired. The ancestral property can be only acquired from father, father's father or father's father's father. It is not the case of any of the legal heirs of four brothers except Konda Reddy that the suit schedule properties are ancestral properties. When the property is not an ancestral property and it is joint acquisition of defendant No.1 and his three brothers, such property cannot be said to ancestral property. In fact, it is a common property. All of them are common owners and enjoying the common possession over the properties. The ownership of such properties can only be transferred by appropriate deed of transfer.
52. The consequences of adoption have been contained under Sections 12 and 13 of the Hindu Adoptions and Maintenance Act, 1956 and they read as under:
"12. Effects of adoption:- An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that―
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
28 ML,J
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(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
13. Right of adoptive parents to dispose of their properties:―Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will".
53. According to Section 12, any property which is vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations. Similarly, the adopted child shall not divest any person of any estate which is vested in him or her before the adoption.
54. According to Section 13, right of adoptive parents to dispose of their properties by transfer inter vivos or by Will absolute unless conditioned by any agreement to the contrary. This means, if there is any agreement restricting such a right of adoptive father and mother to deal with their properties, they cannot exercise such a power and such agreement must be registered as per the decision of the Hon'ble Apex Court in Dina Ji and Ors. vs. Daddi and Ors.10 and the relevant paras are hereunder:
"8. This Section enacts that when the parties intend to limit the operation of proviso (C) to Section 12, it is open to them by an agreement and it appears that what she included in the present deed 10 MANU/SC/2013/1990 29 ML,J SA_862_06 & 43_09 of adoption was an agreement to the contrary as contemplated in Section 13 of the Hindu Adoptions and Maintenance Act.
9. Section 17(1)(b) of the Registration Act clearly provides that such a document where any right in movable property is either assigned or extinguished will require registration. It could not be disputed that this part of the deed which refers to creation of an immediate right in the adopted son and the divesting of the right of the adoptive mother in the property will squarely fall within the ambit of Section 17(1)(b) and therefore under Section 49 of the Registration Act, this could not be admitted if it is not a registered document. Unfortunately, the Hon'ble Judge of the High Court did not notice this aspect of the matter and felt that what could not be done because of the proviso (C) to Section 12 has been specifically provided in the document itself but this part of the document could not be read in evidence as it could not be admitted."
55. In the present case, if the properties are not ancestral properties, the land held by defendant No.1 is self acquisition having undivided common interest and such properties are common properties. Adoption even if it is there, such adoption does not take away right of adoptive father unless there is an agreement to the contrary.
56. In the present case, no such agreement is placed on record which is registered so as to curtail the right of the adoptive father. The declarations made by any individual claiming to have acquired title without proper deed of transfer as required under the Registration Act, 1908, do not confer any title or takes away such title to any party. The 30 ML,J SA_862_06 & 43_09 declarations are only meant for reduction of holdings which are excess of ceiling laws and they shall not determine the title.
57. In the present case, if the plea of ancestral property is not established, the very claim set up before the Tribunal is shrouded in doubt. The claim made before the Tribunal is an attempt to take out the lands from ceiling and not for any other purpose. Such a declaration cannot be a foundation to set up the claim by the plaintiff that he is the absolute owner of ¼ share in the suit schedule-A properties.
58. From the evidence on record, the Courts below rightly found that the plaintiff failed to establish that he is the adoptive son. The findings of the Tribunal do not operate res judicata or cause of action estoppel before the trial Court. Such a plea cannot be raised for the first time in the present second appeals. The plaintiff has not succeeded in establishing the title to his right over the property on the basis of such declarations. Therefore, this Court finds that the Courts below rightly denied any claim over the properties of defendant No.1.
59. In fact, at the time of the suit, the plaintiff had no cause of action to seek partition from the share of his natural father i.e., defendant No.6. Such a right he would get if he establishes that suit schedule-A properties 31 ML,J SA_862_06 & 43_09 are ancestral properties. In the present case, clear evidence shows that it is the joint acquisitions of defendant Nos.1, 6, 9 and Veera Reddy. The plaintiff prayed the alternative relief in the suit that if his plea of adoption is not accepted, his claim of 1/4th share in the share of his natural father (D6) may be allowed in the suit schedule-A properties. The trial Court without looking into the number of share holders of Siva Reddy has granted decree for 1/4th share in the share of defendant No.6 i.e., 1/4th in the suit schedule-A properties. When his wife was there, no reasons have been given for exclusion of such shareholder from inheritance. In fact, there is no appeal from such aggrieved party. Therefore, this Court cannot go into the said dispute in the appeal filed by the plaintiff.
60. The Courts below have also taken note of subsequent events of execution of Will Deed by defendant No.1 and two Codicils which are not seriously disputed by the parties to the suit except defendant Nos.19 to
22. This Court holds that defendant No.1 is entitled to deal with his property and the beneficiaries under the Will and Codicils are entitled to get their shares as bequeathed in the Will deed and Codicils which were rightly upheld in order to avoid further litigation among the parties.
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61. The trial Court rightly dismissed the claim of the plaintiff in respect of the suit schedule-B properties. The reason is that his own pleadings clearly show that they are the acquired properties of late Smt.Lingamma (1st wife of defendant No.1). The plaintiff acquired right being the adopted son and he is entitled for share in the suit schedule-B property, if his plea of adoption is accepted. The trial Court and lower appellate Court has not accepted the plea of adoption and therefore, the suit schedule-B properties must go to defendant No.1 only. The Courts below rightly rejected the claim of the plaintiff in respect of suit schedule- B properties and such findings require no interference.
62. The case of the appellants/defendants Nos.19 to 22 in S.A.No.43 of 2009 is that the suit schedule-A properties were the ancestral properties of their father i.e., Konda Reddy. They pleaded that the properties were inherited from Malla Reddy, who is the father of defendant Nos.1, 6, 9, Veera Reddy and Konda Reddy. No material has been placed to show that Malla Reddy was holding any property, and from him, his sons acquired the properties, so as to designate the properties as ancestral properties.
63. On the contrary, the evidence on record clearly demonstrates that suit schedule-A properties are joint acquisitions of defendant No.1, Veera 33 ML,J SA_862_06 & 43_09 Reddy (died), defendant No.6 and defendants No.9 who are sons of Malla Reddy. They are the common owners in respect of the suit schedule-A properties, having defined undivided shares. Therefore, such properties cannot be termed as ancestral properties. The Courts below have rightly appreciated the evidence on record on this aspect and such findings do not suffer from any perversity. Hence, such findings require no interference. No substantial question of law has been made out in S.A.No.43 of 2009 so as to interfere with the concurrent findings of joint acquisitions.
64. From the above evidence and contentions, I hold that the proceedings of the Tribunal do not operate as res judicata or cause of action estoppel so as to bar the issue raised by the defendants in their defense. Accordingly, the substantial question of law is decided in favour of the defendants against the plaintiff.
Findings on substantial question of law No.(ii):
65. This issue pertains to grant of relief in favour of legal heirs of defendant No.9. The lower appellate Court granted relief in favour of legal heirs of defendant No.9 holding that defendant No.9 was the only surviving legal heir of defendant No.2 at the time of her death, pending 34 ML,J SA_862_06 & 43_09 the suit. Therefore, the allocation of suit schedule-C properties was made to the legal heirs of defendant No.9 i.e., defendant Nos.9, 10, 23 to 26. In fact, it was not the case of the defendant No.9 before the trial Court. The trial Court also not considered Section 15 of the Hindu Succession Act properly. In this regard, it is relevant to refer to Section 15 of the Hindu Succession Act which reads as under:
"15. General rules of succession in the case of female Hindus:- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16:-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1):-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
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66. A reading of the above provision, particularly sub-section (2) of Section 15, the source of acquisition of property by female is also relevant. If the property is acquired from her parents and if no legal heirs are there like son, daughter or children of predeceased son or daughter, the property will not devolve on the heirs referred in sub-section (1), but upon her father's side heirs.
67. In the present case, admittedly the suit schedule-C properties were acquired by defendant No.2 from her father's side. She was holding them as her absolute properties. She died leaving behind no son or daughter or pre-deceased son or daughter. Therefore, her properties shall go to heirs of father, if any.
68. In the present case, this cause of action relating to suit schedule-C properties arose subsequent to institution of the present suit. It is not known whether the legal heirs of father of defendant No.2 were there or not and whether any Will deed is executed by defendant No.2. When such material is lacking, upholding the succession to the husband's side is not fair and such findings of the lower appellate Court require interference. Therefore, the lower appellate Court erred in granting such a relief in favour of legal heirs of defendant No.9 and the same are set aside.
36 ML,J
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Conclusions:
69. In the result;
i) S.A.No.43 of 2009 is dismissed confirming the findings of the
Courts below.
ii) S.A.No.862 of 2006 is partly allowed setting aside the judgment and decree dated 28.04.2006 in A.S.No.66 of 2004 on the file of the Special Judge for trial of offences under SC/ST (POA) Act-cum-V Additional District and Sessions Judge, Medak at Sangareddy to the extent of granting of relief in favour of legal heirs of defendant No.9 i.e., Nos.9, 10, 23 to 26 in respect of suit schedule-C properties and rest of the findings therein are confirmed.
There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
______________ M.LAXMAN, J Date: 22.11.2022 TJMR