Kosaraju Venkatesh vs Kosaraju Gopala Krishna
2023 Latest Caselaw 4289 AP

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        THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                 SECOND APPEAL No.870 of 2014

JUDGMENT:

The Second Appeal has been filed assailing the Judgment

and Decree dated 16.04.2014, passed in A.S.No.47 of 2011 by the

learned II Additional District Judge, Guntur (in short "the first

appellate court") in setting aside the Judgment and decree dated

07.10.2009 in O.S.No.98 of 2001 passed by the learned Senior

Civil Judge, Bapatla (in short "the trial court").

2. The parties will herein after be referred to as they are

arrayed in the Original Suit for the sake of convenience.

3. The Appellants herein are the plaintiffs; 1st respondent is

the 5th defendant before the trial court, who died and his legal

representatives i.e respondents 2 to 4 came on record as per orders

of this Court in I.A.No.1 of 2021 dated 31.12.2021. The defendants

2 and 3 were given up by the plaintiffs in the suit.

4. The plaintiffs filed the suit seeking to pass a Preliminary

Decree for partition of the plaint schedule items 1 to 4 into three

equal shares by metes and bounds with reference to good and bad

qualities and to allot two such shares to the plaintiffs and for

delivery of possession of the same and for future profits.

The averments in the plaint, in brief are as under:-

The plaint schedule properties originally belongs to the 1st

defendant's father Mr. Surayanarayana, who died intestate leaving

behind the 1st defendant as his sole surviving legal heir and on his

death the plaint schedule properties devolved upon the 1st

defendant and the suit schedule properties became the joint family

properties of plaintiffs and 1st defendant. The plaintiffs came to

know that the 1st defendant making hectic efforts to sell the

property and he sold a portion of Items 3 and 4 of plaint schedule

property to defendants 2 and 3. The 1st defendant has no right to

sell the plaintiff's share without obtaining permission from the

competent court of law, as such the sale is not binding on the

plaintiffs. The mother of the plaintiff got issued a legal notice to the

defendants 1 to 3 questioning the sale deed executed by 1st

defendant in favour of defendants 2 and 3. Therefore a suit has

been filed for division of plaint schedule properties among plaintiff

and 1st defendant. As 1st defendant died, 4th defendant who is the

wife of 1st defendant is entitled for undivided 1/3rd share of the

deceased 1st defendant. 5th defendant by name Kosaraju

Gopalakrishna, S/o Surayanarayana was taken in adoption in his

childhood by his uncle Kosaraju Venkatramaiah. The said

Gopalakrishna himself impleaded by filing interlocutory

application. No part of the plaint schedule property was vested

with him before he was taken in adoption. After death of Kosaraju

Suryanarayana, the entire plaint schedule property is in exclusive

possession and enjoyment of 1st defendant. In view of long

possession over a statutory period of 12 years to the knowledge of

one and all including 5th defendant, the claim of 5th defendant is

barred by limitation. Therefore the plaintiffs are entitled for decree

against the 5th defendant also.

5. The 1st defendant in the suit filed written statement by

denying all material allegations, except relationship and mainly

contended that the property belonging to his father

Suryanarayana, on his death, 1st defendant, his brother, mother

succeeded the said property. As such the plaintiffs are not entitled

for 2/3rd share. The suit is bad for non-joinder of other sharers. In

view of debts incurred by him, he sold Item No.3 and 4 to

discharge the debts. Therefore the debts also have to be shared by

all the sharers. The 4th defendant filed written statement

requested to divide the property into three equal shares and to allot

one such share to each of the plaintiff and 1/3rd share out of the

share that would be allotted to the 1st defendant. The 5th defendant

filed written statement that Suryanarayana had two sons and two

daughters namely defendants 1 and 5 and Sridevi and Kasturi.

Both sons and daughters have share in the property of their father

Suryanarayana. The 5th defendant was fostered by his paternal

uncle by name Venkatramaiah. There was no formal adoption. 1st

defendant is the manager of the family. After him, the 5th

defendant is looking after the affairs of the family and he is in

possession of the entire joint family property. Therefore he has no

objection for partition of the property after adjusting the liabilities

of Veeraiah.

6. Based on the above pleadings, the trial court eventually

framed the following issues for trial:

1. Whether the plaintiffs are entitled for 2/3rd share in the total suit schedule properties by recovering possession from the 5th defendant?

2. Whether the 4th defendant is entitled for 1/3rd share in the entire plaint schedule property by covering possession from 5th defendant?

3. Whether the 5th defendant is entitled for any share in the plaint schedule property?

4. Whether the plaintiffs and 4th defendant are entitled for mesne profits from 5th defendant from the date of taking possession of the plaint schedule property?

5. To what relief?

7. During the course of trial PWs-1 to 4 are examined on

behalf of the plaintiffs and Ex.A1 to A8 got marked and on behalf of

the defendants, DWs-1 to 5 are examined and marked Ex.B1 to B4

documents.

8. After considering the material available on record, the trial

court decreed the suit as prayed for. Assailing the said decree and

judgment of the trial court, the 5th defendant has preferred an

appeal in A.S.No.47 of 2011. The first appellate court has framed

the following points for consideration in the Appeal:

1. Whether D5 has any share in the property of deceased Suryanarayana in view of the contention of the plaintiffs that he was given in adoption to one Venkatramaiah?

2. Whether the suit is bad for non-joinder of necessary parties?

3. Whether the plaintiffs are entitled for partition as prayed for?

4. Whether D4 is entitled for a share in the plaint schedule property?

5. Whether D5 is entitled for a share in the plaint schedule property?

9. The First Appellate Court after considering the facts and

circumstances of the case allowed the appeal on merits on

16.04.2014 by setting aside the Judgment and decree of the trial

court. Assailing the Judgment of the First Appellate Court, the

appellants herein, who are plaintiffs before the trial court has filed

this Second Appeal, seeking to set aside the decree and Judgment

of the first appellate court.

10. This court while admitting the Second Appeal has framed

the following substantial question of law, which are as under:-

a) Whether the provisions of Section 12(b) of the Hindu Adoption and Maintenance Act, 1956 come in aid to the 5th defendant, who is the appellant in the first appeal?

b) Whether the lower appellate Court while reversing the judgment of the trial Court failed to evaluate the construction of the documents Exs.B1 and B2 under which the sisters of the 1st defendant was gifted immovable properties in lieu of full and final settlement of their share in the property in its true and correct perspective?

c) Whether the judgment of the Lower Appellate Court is vitiated for the reason that it merely recorded the arguments of the appellant's/ 5th defendant's counsel and allowed the appeal without applying its mind to the evidence on record on the basis of which the trial Court decreed the suit.

d) Whether the findings of lower appellate Court on all the issues and points are wholly baseless, opposed to the evidence on record and which led the court below to commit substantial errors of law and liable to be interfered with by this Court?

e) Whether the finding of the lower appellate Court that the suit is not maintainable on the ground of non-joinder of sisters of the 1st defendant as parties to the suit is perverse and baseless?

f) Whether the reversing judgment of the lower appellate court is wholly vitiated for the reason that its findings are perverse, erroneous, contrary to the evidence on record and unsustainable?

11. Heard Mr. T. Sridhar, learned counsel for the appellants

sand Ms. Syamala Rani/ 3rd appellant appeared as Party-in-

person, and Mr. N. Subba Rao, learned Senior Counsel,

representing Mr. R. Sudheer, learned counsel for the respondents.

12. During hearing learned counsel for the appellant/

plaintiff would contend that it is very crucial point arise for

consideration in this Appeal is that once the plaintiffs rest the suit

on the basis that the suit schedule properties are the separate

properties of the 1st defendant, who is the father of the plaintiffs in

the suit, whether the 5th defendant who is the brother of 1st

defendant and the adopted son of Venkata Ramaiah can claim

share in the same without having any right whatsoever. The first

appellate court miserably failed to see that the trial court on a

careful consideration of the entire evidence on record concluded

that the marriages of the sisters of the 1st defendant viz., Kasturi

and Sridevi were already performed before 1985.

13. It is further contended that the first appellate court

ought to have seen that the 5th defendant himself signed as

identifying witness in the Sub-Registrar Office, Ponnuru at the

time of execution of Ex.A1 as adopted son of Venkatramaiah, but

not as the son of Suryanarayana. Further it is an admitted fact

that there was partition in between K. Suryanarayana and

Venkataramaiah long back. It is further contended that the firstr

appellate court ignoring the fact that the plaintiffs are claiming

their legitimate share in the property of their father, 1st defendant

in the suit, in which case, the 5th defendant, who is the brother of

the 1st defendant and paternal uncle of plaintiffs is not entitled to

any share or any claim in the property of the 1st defendant, that

too, admittedly, the 5th defendant has already succeeded to the

properties of his adoptive father Venktramaiah, the property was

already partitioned between Suryanarayana and his brother.

14. It is contended that the first appellate court ought to

have seen that Section 12(b) of Hindu Adoption and Maintenance

Act, 1956 has no application to the case on hand for the reason

that the 5th defendant having succeed to the property of his

adoptive father Venkatramaiah, simply kept quiet when the part of

the suit schedule properties were being sold by the 1st defendant

under Ex.A1 and A6, particularly he attested Ex.A1 as identifying

witness. In view of the same, the 5th defendant is stopped from

questioning the right of the plaintiffs claiming their legitimate

share in the suit schedule properties. Therefore the findings of the

first appellate court are based on mere surmises and the same is

liable to be set aside.

15. Whereas, learned counsel for the respondents

vehemently opposed to allow the Second Appeal and mainly

contended that the 1st defendant is the manager of the family till

his death, subsequently the 5th defendant is looking after the

welfare of the family and he is in physical possession and

enjoyment of the entire joint family property. Further he has no

objection for partition of the suit schedule property after adjusting

the liabilities of Mr. Veeraiah.

16. Perused the record.

17. Upon perusal of the Judgment of the first appellate

court, wherein it was held that if any boy is fostered from his

childhood, for all practical purposes it would be mentioned the

name of the fastened father of said boy as that of the father of the

boy. Simply because the name of Venkatramaiah is mentioned as

father of 5th defendant in the said documents, the same is not a

ground to say that 5th defendant was adopted by Venkatramaiah.

As per decision of the Hon'ble Apex Court in "Lakshman Singh

Kothari vs. Smt. Rup Kanwar"1 wherein it was held as follows:

"8. To appreciate this argument it is necessary to notice briefly the law of adoption vis-a-vis the ceremony of "giving and taking".

AIR 1961 SC 1378

Golapchandra Sarkar Sastri in his book on Hindu Law 8th edn., succinctly describes the ceremony of" giving and taking" thus at p. 194 :

"The ceremonies of giving and taking are absolutely necessary in all cases. These ceremonies must be accompanied by the actual delivery of the child; symbolical or constructive delivery by the mere parol expression of intention on the part of the giver and the taker without the presence of the boy is not sufficient. Nor are deeds of gift and acceptance executed and registered in anticipation of the intended adoption, nor acknowledgment sufficient by themselves to constitute legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery ; a formal ceremony being essential for that purpose." Much to the same effect it is stated in Mayne's Hindu Law, 11th edn., at p. 237 :

"The giving and receiving are absolutely necessary to the validity of an adoption.

@page-SC1380

They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another. But the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned. For a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose."

The leading decision on this subject is that of the Judicial Committee in Shoshinath Ghosev. Krishnasundari Dasi, ILR 6 Cal 381. That was, like the present, a case of adoption among Sudras. There, it was contended, inter alia, that there was a formal adoption by giving and taking, and in the alternative it was contended that even if there had been no formal adoption as alleged, the deeds of giving and taking, executed in 1864, were sufficient to bring about the adoption and that was all that was essential in the case of Sudras. Sir J. W. Colvile, speaking for the Board, rejected both the contentions. He accepted the finding of the lower courts that there was no formal giving and taking, and rejected the argument that the documents themselves operated as a complete giving and taking of the adoptive boy. The learned Judge observed at p.388 thus:

"There is no decided case which shows that there can be an adoption by deed in the manner contended for; all that has been decided is that, amongst Sudras, no ceremonies are necessary in addition to the giving and taking of the child in adoption. .....It would seem, therefore, that, according to Hindu usage, which the Courts should accept as governing the law, the giving and taking in adoption ought to take place by the father handing over the child to the adoptive mother, and the adoptive mother declaring that she accepts the child in adoption."

That a formal ceremony of giving and taking is essential to validate the adoption has been emphasized by the Judicial Committee again in Krishna Rao v. Sundara Siva Rao, 58 Ind App 148 : (AIR 1931 PC 109). But in practice many situations had arisen when it became impossible for a natural father to hand over the adoptive boy physically, or to an adoptive father or mother to receive the adoptive boy physically due to physical infirmity or other causes. In such cases Courts have stepped in and recognized the delegation of the physical act of giving and taking provided there was an agreement between the natural and adopted parents to give and receive the boy in adoption. The scope of the power of delegation has been clearly stated by West, J., in Vijiarangam v. Lakshuman, 8 Bom HCR OC 244 thus:

"The gift and acceptance in such a case must, as Sir T. Strange has observed be manifested by some overt act; and here Yeshvadabai did not in person hand over her son to Savitri. But the commissioned her uncle to do this, being at the time too unwell to attend the ceremony herself. The Hindu Law recognized the vicarious performance of most legal acts; the object of the corporeal giving and receiving in adoption is obviously to secure due publicity (Colebrook's A Digest. Book V. T. 273, commentary), and Yeshwada's employing her uncle to perform this physical act, which derived its efficacy from her own volition accompanying it, cannot, we think deprive it of its legal effect. We hold, therefore, with the learned Judge, that the adoption is proved and effectual".

18. The Hon'ble Apex Court held that unless giving and

taking of the child is proved, it cannot be said that it is a valid

adoption. But the first appellate court held that the adoption

cannot be held that it is an ancient one. 5th defendant is aged 52

years by the date of filing of the suit. Therefore, it cannot be said

that the adoption of 5th defendant is an ancient one and given a

finding that there is no material to show that the 5th defendant

was given in adoption. Therefore the first appellate given finding

that each plaintiff has claimed 1/3rd share in the property of

Suryanarayana, but it is found that 5th respondent is entitled for a

share on par with the share of 1st defendant. The daughters of

Suryanarayana are also entitled for some property in the family.

Further it was held that as the plaintiffs have not shown the

daughters of Suryanarayana, as the suit itself is not maintainable,

it can be said that the plaintiff is not entitled for any share in the

suit schedule property.

19. Since there is impact on the point of non-joinder of

necessary parties i.e daughters of Suryanarayana. The trial court

without discussed the evidence came to a conclusion whether 5th

defendant was given in adoption or not and further decisions

placed by both the parties also not discussed as it is a simple suit

for partition, which are not applied to the case on hand. Therefore

the first appellate court allowed the appeal.

20. After close scrutiny of the findings of the both trial court

as well as first appellate court, this Court opines that the first

appellate has taken into consideration the material aspects and

discussed the case law scrupulously for each and every aspect,

which the trial court not applied in proper perspective. The

substantial questions raised by the counsel for the appellant are

not satisfied by this Court. The first appellate court has given valid

reasons and has dealt the issues in a right perspective and there is

no irregularity or impropriety in the Judgment of the first appellate

court. Further this Court finds that there is no force on the side of

the appellant to set aside the impugned Judgment of the first

appellate court. Under these circumstances the Judgment of the

first appellate court requires no interference and that this Second

Appeal is liable to be dismissed.

21. Accordingly, the Second Appeal is dismissed, confirming

the judgment of the first appellate court. There shall be no order as

to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 15.09.2023.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

SECOND APPEAL No.870 of 2014

Date: 15.09.2023.

KK