S. Satya Narayana vs Smt. Rajeshwari Yashoda
2022 Latest Caselaw 3633 Tel

            THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                             A.S.NO.2846 OF 2001

                                   JUDGMENT

The appellants herein are the plaintiffs. They filed suit

O.S.No.21 of 1997 on the file of Senior Civil Judge at Nizamabad for

declaration of title and for perpetual injunction against the

defendants. Vide judgment and decree dated 18.08.2001, the trial

court dismissed the suit. Assailing the same, the present appeal is

filed.

2. For the sake of convenience the parties will be referred to as

per their array in the suit.

3. The case of the plaintiffs is that they are the grandchildren of

late Ramaswamy. The said Ramaswamy is the brother of Siluveru

Narayana. Siluveru Narayana is the owner of the house property

bearing Municipal No.2-8-37, 2-8-48 and 2-8-49 situated at Weekly

Bazar, Nizamabad and he died (date not mentioned in the plaint).

Smt.Siluveru Yellamma is the wife of late Siluveru Narayana, and she

also died on 26.12.1996. Thus Narayana and Yellamma died

issueless, leaving behind the suit schedule property.

(a) The claim of the plaintiffs is that they are the legal heirs of

late Yellamma and that they lived with her in the suit schedule

property and looked after her welfare till her death on 26.12.1996,

and that the 1st plaintiff also performed her last rites. Thus they

succeeded to her properties.

(b) Their further case is that defendant No.1 is also one of their

sisters. That after the death of Yellamma, plaintiffs handed over

money for payment of municipal tax to the husband of the defendant

No.1, and they also kept moveable property i.e., cash and gold

ornaments in the custody of the husband of defendant No.1. But

taking advantage of their confidence, the 1st defendant in collusion

with the Municipal Council, got her name mutated in the municipal

records.

(c) That the plaintiffs filed application on 19.02.1997 with the

2nd defendant not to mutate the properties in the name of

1st defendant, but in spite of the same, the suit schedule property was

mutated in the name of the 1st defendant.

(d) That on 26.02.1997, the 1st defendant came to the house of

the plaintiffs and asked them to vacate the suit premises, on the

ground that she got her name mutated in the municipal records. The

claim of the plaintiffs is that after the death of Yellamma, they are in

possession of suit schedule property, and they are the owners and

possessors of the suit schedule property.

(e) With these averments, they filed suit for declaration of title

and for perpetual injunction.

4. The 1st defendant filed written statement and denied the

plaint averments and stated that plaintiffs never lived with Yellamma

in the suit house and they are residing separately in house bearing

Nos.2-10-13 and 2-10-13/1 to 3 at Bobbili Veedhi (Jhandagalli road)

Nizamabad. It is also denied that after the death of Yellamma,

plaintiffs have come into possession of moveable and immovable

properties.

(a) It is stated that this defendant was taken in adoption by late

Yellamma and late Narayana about 30 years ago. So, she is the only

legal heir of late Yellamma.

(b) Here it is to be noticed that the 1st defendant filed

amendment application in I.A.No.658 of 1999, which was allowed on

01.09.1999 and by virtue of the said order, the date of adoption

ceremony is mentioned as 14.12.1958.

(c) That this defendant was brought up, cared for, and adopted

by Siluveru Yellamma and Siluveru Narayana as their adopted

daughter. Subsequently she was married to Sri Nunemunthala Yella

Gound on 27.05.1973 as per caste customs prevailing in the family,

and that the marriage was performed by Narayana Goud and

Yellamma. As per caste customs, the bride's name has to be changed

at the time of marriage as per the wishes of the bridegroom and his

parents. Accordingly, the name of this defendant was changed from

Yashoda to Rajeshwarai Bai at the time of her marriage.

(d) That after the marriage, she is living with her husband at

Jankampet village, and Yellamma was residing at H.No.2-9-837 and

838 Weekly Bazaar, Nizambad and this defendant used to visit her

adopted mother regularly, and used to look after her. The plaintiffs

have given wrong house numbers, and this shows that they have no

idea about the suit schedule properties.

(e) It is also denied that this defendant in collusion with the

2nd defendant got her name mutated in the municipal records. The

plaintiffs are neither the legal heirs, nor representatives of the

Siluveru Yellamma, and they are also not in possession of the suit

schedule properties. The 2nd defendant after making due enquiries

mutated her name in the municipal records as owner. With the

averments she sought to dismiss the suit.

(f) The 2nd defendant - Municipal Council, Nizamabad,

represented by its Commissioner filed written statement and denied

the allegation of the plaintiffs that the 2nd defendant in collusion with

defendant No.1 got her name mutated in the municipal records as its

owner.

(g) It is stated that defendant No.1 submitted application along

with an affidavit and the death certificate of late Yellamma and after

receipt of application, the 2nd defendant got issued notification calling

for objections. As no objections were received, and after getting report

from the Revenue Inspector, showing that the defendant No.1 is the

adopted daughter of Yellamma, mutation was effected in the name of

defendant No.1. With these averments the suit is sought to be

dismissed.

5. Defendants 3 to 8 are stated to be the tenants in the suit

schedule property and no written statement is filed on their behalf.

6. Based on above pleadings, trial court framed the following

issues:

1. Whether the 1st defendant was adopted by Siluveru Yellamma and if the 1st defendant is the sole legal heir of Yellamma?

2. Whether the plaintiffs 1 to 4 alone succeeded to the estate of Siluveru Yellamma?

3. Whether the plaintiffs are entitled to the relief of declaration and injunction?

4. To what relief?

7. In support of the case of the plaintiffs, P.Ws.1 to 6 were

examined and Exs.A-1 to A-12 were marked. On behalf of the

defendants D.Ws.1 to 4 were examined and Exs.B-1 to B-19 were

marked.

8. Appreciating the entire evidence both oral and documentary,

the trial court answered all the issues against the plaintiffs and in

favour of the 1st defendant, and accordingly dismissed the suit.

Assailing the same, the present appeal is filed.

9. Sri Yellanand Gupta, learned counsel appearing for the

appellants / plaintiffs submits that the plaintiffs served Smt.

Yellamma and also her husband Siluveru Narayana till their last

breathe with love and affection in the capacity of grandsons and legal

heirs and that the 1st plaintiff himself performed the funeral ceremony

of Smt. Yellamma and has been performing 'Pinda Pradan' till today in

the capacity of grandson and legal heir. He further stated that the

1st defendant never lived with Yellamma. To prove that plaintiffs lived

with Yellamma in the suit schedule property till her death and served

her with love and affection, they examined P.Ws.1 to 6, but the trial

court failed to appreciate the said evidence.

10. Learned counsel submits that the claim of defendant No.1

is that she was given in adopted to late Narayana Gound and

Yellamma. The Apex Court in the judgment reported in M.VANAJA

V. M.SARLA DEVI1, while considering Sections 6, 7, and 11 of the

Hindu Adoptions and Maintenance Act, 1956, held that the

mandatory requirements of a valid adoption are consent of wife and

proof of ceremony of actual giving and taking in adoption, and in the

(2020)5 SCC 307

absence of proof of these requirements, mere fact of child being

brought up by another couple and their names being entered in the

child's school / college records as parents would not be sufficient to

prove child's adoption by them.

11. In the present case, the 1st defendant who is claiming that

she is given in adoption to Narayana Gound and Yellamma, has not

proved the adoption by leading any cogent evidence, and her claim is

that she was brought up by Siluveru Narayana and his wife Yellamma,

and that they performed her marriage, and that their names have

been entered in the school records as parents. But as per the above

judgment of the Apex Court these circumstances cannot be taken as

proof of adoption and that the defendant No.1 has to prove the

adoption as per the provisions of the Hindu Adoptions and

Maintenance Act, 1956. As she failed to prove the adoption, her claim

that she is the adopted daughter of Yellamma, and that she is her sole

legal heir, cannot be accepted.

12. He further submits that though the plaintiffs have given

representation not to mutate the name of the 1st defendant in the

municipal records, the 2nd respondent mutated her name without

giving them any opportunity.

13. As the trial court has not appreciated the material evidence

available on record and dismissed the suit, the same requires to be set

aside and the appeal be allowed.

14. On the other hand Sri Ponnam Ashok Goud, learned

counsel appearing for the 1st respondent supporting the impugned

judgment, sought to dismiss the appeal.

15. In view of the facts and circumstances of the case and the

rival submissions of the learned counsel, the issue that arises for

consideration is, 'whether the impugned judgment and decree

warrants any interference'?

16. The admitted facts on record are that the plaintiffs and

defendant No.1 are the brothers and sister and as per the material on

record it could be seen that there are two more sisters, who are not

made as parties. They are the grand children of late Ramaswamy,

who is the brother of Narayana Goud. It is also an admitted fact on

record that the suit schedule properties are the self-acquired

properties of late Narayan Goud. Smt. Yellamma is the wife of late

Narayan Goud, and they died issueless.

17. The claim of the plaintiffs is that they are the legal heirs of

Yellamma and that they lived with her in the suit schedule property

and looked after her welfare, and served her till her last breathe, and

that they are the successors of her properties. That Yellam died on

26.12.1996, and that after her death, they handed-over money for

payment of municipal taxes to the husband of the defendant No.1,

and they also handed over movable properties viz., cash and gold

ornaments to be kept in his custody, but taking advantage of the faith

reposed, the 1st defendant in collusion with the 2nd defendant -

Municipal Council, got her name mutated in the revenue records.

18. To prove their claim that Yellamma lived with them,

plaintiffs got examined P.Ws.1 to 6.

19. P.W.1 is the 1st plaintiff and he deposed as per the plaint

averments and P.W.2, who is stated to be the vegetable vendor also

deposed in the same lines as that of P.W.1.

20. P.W.3 is one Madur Chinnamma, and that she is known to

plaintiffs and also the first defendant and plaintiffs examined her to

depose about the fact that the plaintiffs lived with Yellamma till her

death. A perusal of her evidence goes to show that she categorically

deposed that plaintiffs 1 to 4 used to visit the house of Yellamma, and

they also used to bring her to their house during festivals.

21. P.W.4 is one Chand Bee, w/o Dawood, a labour worked

under Balram, father of P.W.1. She deposed that during the life time

of Yellamma, Balram and the plaintiffs used to visit her. She further

deposed that Balram was looking after the welfare of Yellamma and

that after his death, the plaintiffs were looking after the welfare of

Yellamma till her death.

22. P.W.5 is one Kola Yadgiri, the elder brother of Yellamma.

He deposed that plaintiffs 1 to 4 used to occasionally reside with

Yellamma.

23. P.W.6, is one Phulamma, who is known to plaintiffs as well

as defendant No.1. As per her evidence, Yellamma used to reside

alone after the death of her husband and plaintiffs used to visit her

now and then.

24. Based on the evidence P.Ws.3 to 6, the trial court found

that plaintiffs were not residing with Siluveru Yellamma and Siluveru

Narayana in the suit house as permanent residents, but they were

only visiting them occasionally.

25. Thus the plaintiffs failed to prove their claim that they were

residing with Yellamma in the suit properties till her death.

26. The further case of the plaintiffs is that only after filing of

the suit the first defendant by lodging complaint with the police on

8-3-1997 came into possession of the suit house. If really this is a

fact, the plaintiffs ought to have sought for an amendment to the

plaint claiming recovery of possession, but no such amendment

application is filed. This also disproves their case that they were in

possession of the suit schedule property as on the date of filing of the

suit.

27. The further claim of the plaintiffs is that they are the sole

legal heirs and successors to the properties of late Yellamma. The

admitted fact on record is that the 1st defendant is the sister of the

plaintiffs and they are also two other sisters. In these circumstances

it is not known on what basis the plaintiffs could claim that they are

the sole legal heirs to the property of late Yellamma.

28. It is to be seen that the burden is on the plaintiffs to prove

their claim. As discussed above, they failed to prove their claim that

they lived with Yellamma in the suit schedule property till her death

and that they are the sole legal heirs and succeeded to the property.

29. On the other hand the claim of the 1st defendant is that as

Narayana and Yellamma were issueless, she was given in adoption to

them and the adoption ceremony was performed on 14.12.1958 and

that she is the only legal heir of late Yellamma. That she was brought

up by Siluveru Yellamma and Narayana as their adopted daughter

and subsequently she was married to Nunemunthala Yella Goud.

But, the defendant No.1 could not file any document evidencing her

adoption before the court. However she examined herself as D.W.1

and deposed as per the averments made in the written statement.

She also examined D.W.2, who deposed about the adoption process

and he is stated to have attended the adoption ceremony. D.W.4, is a

doctor by profession and neighbor, who is stated to have attended the

adoption ceremony.

30. Apart from oral evidence, the defendant No.1 got marked

Ex.B-1, which is the wedding invitation, which shows the name of

Siluveru Narayana Goud as the grand father of the bride (Rajeshwari

Bai (D.W.1); Ex.B-2 is her bona fide certificate wherein the name of

Narayana Goud was shown as her father; Ex.B-3 is the transfer

certificate, wherein the name of Narayana Gound, husband of

Siluveru Yellamma, was shown against the column of 'name of parent

/ guardian'. Further in Ex.A-10, which is the wedding invitation card

of the D-1, filed by the plaintiffs, it is shown that D-1 as the grand

daughter of Narayana Goud.

31. The witnesses examined on behalf of the plaintiffs also

deposed that Siluveri Yellamma and her husband Narayan Goud

performed the marriage of D-1. Here it is to be noticed that if D-1 is

not the adopted daughter of Narayana Gound and Yellamma, why

they have performed the marriage, when her parents are alive.

Therefore, this circumstance also clearly establishes that she is the

adopted daughter, and hence they performed her marriage. The only

claim of P.W.1, is that the marriage expenses were born equally by

Narayana Gound and Balram Goud, who is their father. But no

evidence in support of this claim is produced before the court and

however this has no relevance to the facts of the present case.

32. The further case of defendant No.1 is that she was brought

up by Narayana Gound and Yellamma and they performed her

marriage on 27.5.1973 and that after the marriage she is living with

her husband at Jankampet village. In other words, the claim of the

defendant No.1 is that till her marriage she was living with her

adopted parents at the suit schedule property. The plaintiffs case is

that defendant No.1 never lived with Narayana Goud and Yellamma.

But the witnesses examined on behalf of the plaintiffs i.e., P.Ws.1 to 6

deposed that after the marriage of defendant No.1, she never lived in

the suit house along with Siluveru Yellamma, and these witnesses

have not deposed that before marriage of defendant No.1 she was not

living with Yellamma and Narayana. Therefore, this circumstance also

strengthens the case of defendant No.1 that she lived with Narayana

Goud and Yellamma till her marriage and thereafter she has been

living with her husband at Jankampet village, as it is quite natural

that after the marriage the female will join the matrimonial house of

the husband.

33. Considering the above facts and circumstances, the trial

court has categorically found that the defendant No.1 was brought up

by Siluveru Narayana and his wife Siluveri Yellamma, and provided

education, hence their names were reflected in the school records, and

further it is they who performed her marriage. Therefore, the facts

and circumstances on record strengthen the case of defendant No.1

that she is the adopted daughter of Narayana and Yellamma.

34. It is also to be noticed that Narayana Goud is no other

than the brother of grandfather of defendant No.1, and he is issueless,

and in these circumstances, it is not unusual to adopt one of the

children of close relations. Here Narayana adopted the granddaughter

of his brother, out of love and affection, and however, as noted above,

defendant No.1 has proved the adoption by leading cogent and

convincing evidence.

35. Further in the written statement filed by the 2nd defendant

it is categorically stated that the defendant No.1 submitted application

along with an affidavit and the death certificate of Yellamma and this

defendant got issued notification calling for objections and that no

objections were received and the Revenue Inspector filed report

showing that the defendant No.1 is the adopted daughter of Yellamma

and based on these circumstances, mutation was effected in the name

of defendant No.1. No reply is filed denying these averments.

36. Now coming to the judgment of the Apex Court relied on the

counsel for the appellants in M.VANAJA V. M.SARLA DEVI (1 supra),

it could be seen that the facts of the said case disclose that the suit

therein was filed by appellant therein to declare that she is the

adopted daughter of the respondent and her husband, and for

partition of the properties belonging to the deceased husband of the

respondent. The appellant therein failed to produce any proof in

support of her claim and moreover, the adoptive mother has

categorically denied that the appellant was never adopted and that

she was merely brought up by her husband. The grandmother of the

appellant has also categorically deposed that the appellant who lost

her parents in her childhood was given to the respondent and her

husband to be brought up, and that the appellant was not adopted by

the respondent and her husband. In these circumstances, the court

found that the appellant had failed to prove that she had been

adopted by the respondent and her husband. In these circumstances,

the Apex Court held that the mandatory requirements of a valid

adoption is, consent of wife and proof of ceremony of actual giving and

taking in adoption and that in the absence of proof of these

requirements, mere fact of child being brought up by another couple

and their names being entered in the child's school / college records

as parents would not be sufficient to prove child's adoption by them.

37. Coming to the present case, the suit is not filed by the

defendant No.1 to declare her as the adopted daughter of Yellamma

and Narayana Goud. The suit is filed by the plaintiffs claiming that

they lived with Yellamma till her death and served her, and thus they

are the sole legal heirs of Yellamma and that they are in possession of

the suit schedule property, which they failed to prove. In the present

case, the suit is filed after the death of Yellamma and Narayana Goud

claiming the property. The defendant No.1 based on her marriage

invitation and school records and also by leading circumstantial

evidence could prove that she is the adopted daughter of Siluvuru

Narayana Gound and Siluvuru Yellamma. Therefore, the proposition

of law laid down in the above judgment, cannot be made applicable to

the facts of the present case in all fours.

38. The trial court appreciating the entire evidence, both oral

and documentary, and by recording cogent and convincing reasons,

dismissed the suit and hence I do not find any reason to interfere with

the said judgment and decree of the trial court. The issue framed is

answered accordingly.

39. The appeal is devoid of any merits and the same is

accordingly dismissed, confirming the judgment and decree of the trial

court.

40. Interlocutory Applications pending, if any, shall stand

closed. No order as to costs.

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M.G.PRIYADARSINI,J

DATE: 12--07--2022

AVS