Lampu Krishnavenamma v. Niriki Hanumantha Rao

JUDGMENT*

The appellant was the 2nd plaintiff in the lower Court. The suit was originally brought by the 1st plaintiff, a minor, who was alleged to have been adopted by the present appellant, who was impleaded as the 2nd defendant. The original plaintiff having died the 2nd defendant was transposed as the 2nd plaintiff and has now become, on the dismissal of the suit, the appellant. The suit was brought for the recovery of certain properties which admittedly belonged to the father of the appellant, one Subba Rao. He had a son by name Hanumantha Rao who however predeceased him. Subba Rao was, it appears, for several years before his death insane and on his death sonless in 1908 the appellant his daughter became his heir. On the 17th January 1912 she executed Ex. I to the 1st defendant, the deceased predecessor of Respondents 1 to 3, releasing all her then rights to the 1st defendant described therein as her gnati (reversioner) and agreeing to accept from him a maintenance for her lifetime of Rs. 5 a month. The appellant was apparently content with this arrangement for practically the whole period of 12 years; for she gave up possession and enjoyment of her father's property to the 1st defendant. On 15th January 1924 she executed an adoption deed in respect of her husband's brother's son, the original plaintiff, a boy aged seven; and on the next day, i.e, the 16th January she purported to execute to him a second surrender of the same properties which she already surrendered to the 1st defendant and this suit was brought on the 17th January, 1924. Curiously, in the plaint nothing was mentioned not even by reference, about the first surrender Ex. I and all that is said is that on the 17th January, 1912 the 1st defendant got into possession of the properties having paid some money to the appellant (2nd defendant). The 1st defendant, the only contesting defendant, denied the factum and validity of the plaintiff's adoption and also set up that even if the plaintiff's adoption were valid it would have no effect upon surrender in his own favour which could not be attacked on any ground whatsoever. Issues were framed on both these main heads of the case. It will be seen from the judgment of the learned Judge that he has gone fully into all the issues and on the question of adoption held against its validity. As will appear presently it is not necessary for us to go into that. As the appellant's learned advocate said in opening the case he would have, in order to succeed, to show that the first surrender Ex. I was not binding upon the appellant even if there had been a valid adoption and if he cannot succeed in doing that it would be unnecessary to go into the question of the plaintiff's adoption.

The learned advocate argued that the learned Judge's opinion against the appellant upon this matter was not sustainable on three grounds:—

Firstly that the 1st defendant is not a reversioner of the appellant's father's family at all in whose favour alone there could be a surrender.

Secondly that the surrender was not of the entire property because it omitted one house which belonged to the estate, and

Thirdly that the surrender was vitiated by being brought about by fraud or misrepresentation or by threats of oppressive litigation employed by the 1st defendant and a vakil who was helping him, one Venkoba Rao.

We have heard the learned advocate at great length upon these points and have no hesitation in saying that the learned Judge's conclusion on these matters which he has dealt with fully in his judgment is perfectly justified.

First as to whether the 1st defendant was a gnati or reversioner of the appellant's father the matter is put beyond all possibility of doubt by the indisputable documents in the case. So long ago as 1860 a statement was made to the Inam Commissioner by Hanumantha Rao the father of the 1st defendant (vide genealogical table at page 26 of the pleadings) that Subba Rao, then a young man and his uncle Bhima Rao and his father Raghavendra Rao belonged to one branch of the family and that Gurraja Rao, the deponent's elder brother, the deponent himself and certain others belonged to the other branch of the family. A portion of the statement sets out the genealogical table which is exactly the same as that put forward by the 1st defendant. The statement relates obviously to the inam to which both the branches of the family were equally entitled of which the appellant's half share is the 2nd item in the schedule to Ex. I. The appellant's learned advocate attempted to persuade us that this statement was not sufficiently proved. The document produced is a certified copy obtained from the proper office of a statement made to a public officer in the course of his duty. The identity of the parties and the occasion when it was made have been sufficiently proved by the evidence in the case. No other proof of such a document or its contents can be required at this distance of time. We consider the objection of the appellant unsustainable. This by itself would have been sufficient to overthrow the appellant's argument on this matter but there are more recent documents to the same effect. Exs. II and II-A are respectively the plaint and summons in a suit of 1904 brought by Hanumantha Rao the appellant's brother against the deceased 1st defendant for 3 years arrears of rent at Rs. 10, per annum alleged to be due on one half of another inam property held by the 1st defendant as the then plaintiff's lessee. The merits of the litigation are now immaterial but the plaint contains in paragraphs 3 and 4 an explicit statement that the then plaintiff and the present defendant are Dayadhis. It goes further and sets out the exact relationship which however on comparison with the genealogical table attached to the inam statement is seen to be slightly inaccurate. Then the plaint claims half share of certain inam property as belonging to the plaintiff and the other half as belonging to the defendant and that the defendant had been in enjoyment of the plaintiff's half also as lessee. The suit was compromised by the defendant giving up possession of the property and the plaintiff waiving his claim for rent. The appellant's advocate has really no valid ground on which he can ask us to say that Hanumantha Rao's statements in his plaint are not entitled to their full weight. By these documents it is fully established that the 1st defendant represented one branch of the family while Hanumantha Rao and his father represented the other and in the absence of any proof that on the date of Ex. I there was any one else who was nearer in relationship to Subba Rao than the present defendant we think that the argument founded upon the usual style in which parties usually described themselves as “Sunkari” and “Niriki” has no force. We agree with the learned Judge that the 1st defendant was the nearest reversioner of Subba Rao the last male-holder on the date of Ex. I.

As to the argument that some property was left out of the surrender deed Ex. I it is equally unfounded. The property said to have been excluded is a house but it is seen from Ex. XIV that this house had been sold so early as 1908 by Krishnammal the widow of Hanumantha Rao to a stranger and it has remained with the stranger and his successors in title to this date. It follows that at the time of Ex. I the property was not with the family at all. But it is argued that the property belonged to the family and that the appellant should have questioned the alienation of Krishnammal and that therefore the house was also property which should have been included. We do not think that this argument is sound. No doubt the surrender must be of the entire property. When it is said that the surrender must be of the entire property it means the entire property then in the possession and enjoyment or control of the family. It has been held that even if some property has been left out by inadvertence it may be repaired by a subsequent surrender. It cannot be the case in respect of properties that have been alienated away and are in possession of strangers that a widow surrendering her rights is required to mention all possible causes of action about them at the risk of finding her act invalid. At the date of Ex. I all that the appellent had, if she had it, was a chance of getting Krishnammal's sale deed set aside. That is not property nor can the omission of such a right of action be held to diminish from the entirety of the surrender. Besides it is not established that the property belonged to the estate of Subba Rao and the respondent has argued that the property belonged to Hanumantha Rao. However that may be, the appellant's argument fails.

The appellant's 3rd and the last point is that the surrender deed Ex. I was brought about as a result of fraud or misrepresentation or threats employed to a helpless widow who was overcome by them. This is perhaps the weakest point in the appellant's case. In the plaint nothing is said about any evil influence brought to bear on the appellant to which she succumbed. As already said even the surrender deed is not mentioned. Of the ten issues there is not one directed to this point and this is remarkable seeing that there are as many as four issues (issues 2 to 5) relating to this surrender. The appellant's learned advocate refers to the 4th issue which puts the question in as vague a form as possible when it asks “whether the said deed is a deed of surrender of late Sunkari Subba Rao's estate by the 2nd defendant and valid and binding on the plaintiff?” This issue does not put any such question as raised by the appellant's arguments. But during the trial a plea seems to have been put forward that the deed was executed by the widow without bona fides or knowledge of her actual rights and under fraud. Seeing that there was no allegation of any fraud whatever we can only take the plea raised before the Judge at the hearing as recorded and commented upon by him in his judgment. In paragraph 17 of the judgment the learned Judge says

“that it was misrepresented to her that she could not have any rights in the property inasmuch as her father predeceased his son (her brother) and that believing in that representation she executed the deed.”

There is no evidence to show that any such misrepresentation was made to her at that time. After commenting on this fact and also on the allegations made against Venkoba Rao who was at one time Public Prosecutor of the Kurnool District Court as utterly unfounded, the learned Judge goes on to show that the allegation of misrepresentation is belied by the fact that the appellant herself so early as 1911 was able to obtain from the Sub-Collector, Nandyal, an order restoring the patta to her by producing before him extracts from the death register of both Subba Rao and Hanumantha Rao. It is idle to pretend that nearly a year afterwards she was induced to execute Ex. I by being represented to her that her father was the first to die and that her brother died only afterwards when as a matter of fact the reverse was the case and it was known to her. In fact she must have known the facts at the time they occurred and no stranger could successfully misrepresent them to her. But it is complained that the learned Judge misapprehended the appellant's case on this point and that the misrepresentation consisted actually in the threats which were employed by Venkoba Rao and the 1st defendant that they would promote a litigation on the basis of those false allegations and that she being a helpless widow was overcome by the threats and therefore was induced to surrender her rights. There is no indication that this was the case made before the learned Judge. In fact the evidence of the appellant herself does not refer to any threats or to any misrepresentation. Above all there is the fact which appears from Ex. I itself that the appellant was not in the position of a helpless young widow influenced entirely by interested and unscrupulous strangers but that she was acting under the advice and with the concurrence of her close relations in her husband's house. Her husband having died and she being childless, in such a transaction as surrendering her rights as limited owner she would seek the advice of her husband's relations and Ex. I is attested by her husband's paternal uncle and her identity was spoken to before the Sub-Registrar by her father-in-law himself, who was a Revenue Inspector. It is impossible to believe that these gentlemen in respectable positions in life and in a position to take care of the interests of the appellant would have thrown them away merely because Venkoba Rao happened to be a vakil or the 1st defendant happened to be a Union Chairman. No doubt the situation was that the appellant's father's property was as Ex. I shows scattered in several villages and Subba Rao having been insane for several years before his death, and the lands neglected, it was not easy to look after these lands. It was in these circumstances that a proposal was made to the 1st defendant that he should take the property and maintain the widow for her lifetime. Ex. V-B a letter (which the appellant has not taken the trouble to print but which the learned Judge refers to as an important piece of evidence) shows that Venkoba Rao who had been a friend of the family settled the terms and was partly instrumental in inducing the 1st defendant to accept the proposal. From these facts not only do we see nothing to throw doubt or suspicion of mala fides about Ex. I but on the contrary they show that the present allegations of threat, fraud and misrepresentation are groundless. If we look at the appellant's conduct it leads to the same result. For practically the whole period of 12 years she was content and took no steps to disown or dispute Ex. I. Apparently her father-in-law and his brother who had been witnesses in Ex. I would not be parties to any such enterprise. Thereupon almost on the last day of the 12th year and obviously to prevent the appellant having herself to go to Court and set aside her own act some ingenious mind conceived the idea of getting up an adoption for that purpose. The result was the adoption immediately followed by another surrender deed of the same properties and this suit.

Under these circumstances we have no hesitation in agreeing with the learned Judge that the surrender is not open to attack on any of the grounds set up by the appellant. It is not disputed that unless he can do so the issue on adoption need not be gone into.

The appeal is dismissed with costs of the 1st respondent (3rd defendant). The appellant should pay the court-fee due to Government.

N.R.R Appeal dismissed.