Telangana High Court
Srinivas Reddy, vs Hanmanth Reddy, on 22 November, 2022
Bench: M.Laxman
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
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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(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
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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.
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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
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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
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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
2013 (5) ALD 788.
2013 (5) ALD 798.
(2005) 1 SCC 787.
AIR 2020 SC 1884.
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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
(1976) 4 SCC 780.
AIR 1965 AP 177.
AIR 1971 CALCUTTA 512.
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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.
AIR 1971 SC 2355
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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
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
SA_862_06 & 43_09
(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
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.
32 ML,J
SA_862_06 & 43_09
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."
35 ML,J
SA_862_06 & 43_09
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
SA_862_06 & 43_09
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
