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2002 DIGILAW 639 (AP)

Maheswaran Laxmi v. Maheswaram Krishna Murty

2002-06-04

G.YETHIRAJULU

body2002
( 1 ) THIS appeal is directed against the judgment, and decree of the Subordinate judge, Siddipet in A. S. No. 7 of 1993 preferred against the judgment and decree in O. S. No. 317 of 1998 on the file of the district Munsif, Siddipet. ( 2 ) THE appellant is the plaintiff and the respondent herein is the defendant in the suit. During the pendency of the appeal, the appellant died and his L. Rs. were brought on record as appellants 2 to 4. During the pendency of the appeal, the 2nd appellant also died. Therefore, his L. Rs. were also brought on record as appellants 5 to 9. ( 3 ) THE plaintiff filed the present suit for declaration that the judgment and decree in o. S. No. 266 of 1987 dated 29-7-1987 on the file of the District Munsif, Siddipet is obtained by playing fraud by the defendant and alternatively for cancellation of the said decree. ( 4 ) THE averments of the plaint are briefly as follows: the plaintiff s husband late maheswaram Lakshminarsaiah "was the paternal uncle of the defendant. The said lakshminarasaiah died intestate on 3-3-1983 issueless at the age of 72 years leaving behind him the plaintiff as the only legal heir. Late Lakshmi Narasiah owned and possessed a house and Ac. 3. 07 guntas of dry land in Sy. No. 2201 at Siddipet. After his death, the land and the house property were mutated in the name of the plaintiff in the relevant records. Though the plaintiff had no children, her husband did not adopt any child, since his brothers did not give any of their children for adoption. On the death of late Lakshmi Narsaiah, his eldest brother s son M. Sriramulu performed the obsequies. He lived in the family of the plaintiff for a period of one and half years to give company and support to her. Thereafter he shifted to his house due to his personal necessities. On 31-10-1982 late Lakshmi narsaiah executed a sale deed in favour of k. Balaiah for an extent of Ac. 3. 00 of land by receiving an earnest money of Rs. 10,000/ -. Thereafter he shifted to his house due to his personal necessities. On 31-10-1982 late Lakshmi narsaiah executed a sale deed in favour of k. Balaiah for an extent of Ac. 3. 00 of land by receiving an earnest money of Rs. 10,000/ -. After the death of Lakshmi Narsaiah, k. Balaiah insisted on the plaintiff to execute a sale deed, but due to intervention of elders the matter was settled by cancelling the agreement on 28-3-1983 and repayment of the earnest money of Rs. 10,000/- by sriramulu and two others. When those persons demanded for repayment and threatened to occupy the land, the plaintiff was in a confused state of mind. The defendant taking advantage of the said position obtained her thumb impressions on blank papers and filed O. S. No. 266 of 1987 on 29-7-1987 for declaration that he is the adopted son of Late Lakshmi Narsaiah. She was made to file a consent written statement and made her to agree in the court about the adoption of the defendant and he obtained a decree in the said suit. Subsequently the plaintiff came to know about the said decree on account of the propaganda made by the defendant that he became the absolute owner of the property. Hence the suit for cancellation of the said decree. ( 5 ) THE defendant filed a written statement opposing the suit by contending that the plaintiff and her husband adopted him when he was five years old, as per the custom prevailing in their community. He was brought up, educated and they performed his marriage. The defendant performed the obsiques of late Lakshmi narsaiah and developed the properties. The plaintiff at the instigation of the cousins of the defendant filed the suit. The plaintiff having agreed for a consent decree cannot maintain the suit for cancellation of the said decree. The suit is therefore liable to be dismissed with costs. ( 6 ) ON the basis of the above averments, the trial court framed appropriate issues. ( 7 ) THE plaintiff in order to prove her case examined P. Ws. l to 12 and marked Exs. A-1 to A-19. The defendant examined D. Ws. l to 6 and marked Exs. B-1 to B-25 and also marked Ex. X-1 sale deed through D. W. 2. ( 7 ) THE plaintiff in order to prove her case examined P. Ws. l to 12 and marked Exs. A-1 to A-19. The defendant examined D. Ws. l to 6 and marked Exs. B-1 to B-25 and also marked Ex. X-1 sale deed through D. W. 2. ( 8 ) THE trial court after considering the oral and documentary evidence adduced by both parties held that the defendant was recognized as the adopted son of late lakshmi Narsaiah, that the defendant did not play any fraud or misrepresentation on the plaintiff and the consent decree was passed in O. S. No. 266 of 1987 and the said decree is not void. The trial court accordingly dismissed the suit through its judgment dated 18-1-1993 holding that the plaintiff is not entitled to get the decree in o. S. No. 266 of 1987 cancelled. ( 9 ) THE plaintiff being aggrieved by the judgment and decree of the trial court preferred A. S. No. 7 of 1993 on the file of the subordinate Court, Siddipet. ( 10 ) THE 1st appellate court after considering the material available on record and after going through the judgment of the trial court concurred with the findings given by the trial court and dismissed the appeal through its judgment dated 17-10-1994. ( 11 ) THE plaintiff being aggrieved by the judgment and decree of the 1st appellate court preferred this appeal challenging its validity and legality. ( 12 ) THE plaintiff filed the suit for cancellation of a decree in O. S. No. 266 of 1987 on the ground that it was obtained by the defendant by playing fraud and misrepresentation. The defendant pleaded that since Lakshmi Narsaiah and the plaintiff were not having any children they adopted him at the age of 5 years, brought him up, educated and performed his marriage. It is the further contention of the plaintiff that when he filed the suit for a declaration that he is the adopted son of late Lakshmi Narsaiah, the plaintiff herein filed a consent written statement by engaging an advocate and represented to the said court by her personal appearance that she voluntarily filed the consent written statement and conceded that a decree may be passed in favour of this defendant holding that he is the adopted son of late lakshmi Narsaiah and herself. The plaintiff having consented for passing of the decree in O. S. No. 266 of 1987 on 29-7-1987 kept quiet for a period of one year and later filed the present suit for cancellation of the decree. The defendant contended that the plaintiff at the instigation of his cousins, who were jealousy on seeing the plaintiff getting some benefit out of the decree, brought pressure on the plaintiff to file the suit for cancellation of the said decree. The trial court as well as the 1st appellate court considered the entire evidence placed by both parties and came to a concurrent finding of fact that the defendant was the adopted son of late Lakshmi Narsaiah and the plaintiff. Since there is concurrent finding of fact by the courts below, it may not be desirable for this court to interfere with the said findings unless there is perversity in the findings of the 1st appellate court and that the findings are not based on the evidence available on record. Though I am conscious that the scope of section 100 C. P. C. is limited, in view of the lengthy argument advanced by the learned counsel for the appellant/plaintiff, the following substantial question of law is taken up for consideration: whether there is any perversity in the findings of the 1st appellate court, which are not on the basis of the evidence available on record, and whether this court can interfere with the said findings? ( 13 ) POINT Ex. A-1 is the certified copy of the decree in O. S. No r266 of 1987, Which wasfifed for theclarathan the difemdant is the adopted son of late Lakshmi Narsaiah and the plaintiff. An advocate by name Sri raghotham Reddy represented the defendant in the said suit. A consent written statement was filed and an oral admission was made in the court. Exs. B-19 and B-20 are the certified copies of the docket orders date\d 29-7-1987. In Ex. B-19 it was mentioned by the court that Sri Raghotham reddy, advocate filed vakalath and consent written statement on behalf of the defendant admitting the suit claim. The defendant is present in person and admitted the suit claim. The consent written statement was verified. Since the suit claim is proved the suit was decreed as prayed for. In Ex. B-19 it was mentioned by the court that Sri Raghotham reddy, advocate filed vakalath and consent written statement on behalf of the defendant admitting the suit claim. The defendant is present in person and admitted the suit claim. The consent written statement was verified. Since the suit claim is proved the suit was decreed as prayed for. In Ex. B-20 the said court passed an order that the defendant was present in person and admitted the contents mentioned in the written statement. She has no objection to decree the plaintiff s suit. After making the above observations, the said court decreed the suit. The plaintiff now claims that she was mislead, misrepresented and the defendant obtained the decree by playing fraud on her. Therefore, the burden is on her to prove that the said decree was obtained by playing fraud on her. The defendant in order to prove that he was the adopted son of late Lakshmi narsaiah produced Ex. B-1 certificate from the Headmaster of the Government Basic school, Siddipet to indicate that the father s name of the defendant was shown as late lakshmi Narsaiah. Exs. B-2, B-8property tax chalans, Exs. B-6, B-7voter s registration form, Ex. B-10publication made by Siddipet Municipality for mutation of the record in the name of the plaintiff and the defendant, Ex. B-11letter from municipality intimating that their names have teen mutated, Ex. B-21eligibility certificate issued by the Revenue Divisional officer, Siddipet in 1964, Ex. B-23transfer certificate issued by the Government High school. Siddipet and other relevant documents to indicate that the name of his father is shown as Lakshmi Narsaiah. The defendant also filed Ex. B-25voter s list showing the names of himself and his wife at S. Nos. 217 and 218 to prove that his wife was also residing in the same house in which the plaintiff was residing. The defendant was alleged to be five years old by the date of his adoption. His parents died during his childhood. As per the oral evidence adduced by the defendant, late Lakshmi Narsaiah adopted him. The oral and documentary evidence adduced by , the defendant are supporting the decree passed in O. S. No. 266 of 1987 holding that the defendant was the adopted son of late lakshmi Narsaiah. His parents died during his childhood. As per the oral evidence adduced by the defendant, late Lakshmi Narsaiah adopted him. The oral and documentary evidence adduced by , the defendant are supporting the decree passed in O. S. No. 266 of 1987 holding that the defendant was the adopted son of late lakshmi Narsaiah. ( 14 ) THE plaintiff in order to prove her case filed Exa-3 - registration extract of the \ sale deed to show that the father s name of the defendant was mentioned as Durgaiah. The sale deed is of the year 1989. The decree ] for adoption was obtained in 1987 and the plaintiff also filed the suit in, 1988. The defendant would not have committed such mistake in describing his father s name, wrongly, but for a specific reason thathi sold the property got from his natural firthef and in order to trace out the title he mentioned/ the said name and since it is i subsequent document, no credence can be given to its contents. ( 15 ) THE plaintiff filed Ex. A-15-Voters list to show that the name of the defendant and his wife were shown at a separate place to indicate that they are residing in a different house. It is the voters list of 1986. By then there were differences between the plaintiff and the defendant. Therefore, it is nothing but common that the defendant stayed away from the house of the plaintiff. But, in ex. B-25-voters list of the year 1988, the name of the defendant s wife is shown as residing in the house of the plaintiff. Though there is a little confusion regarding the entries in the voters list, the other documents filed by the defendant established that he was describing late lakshmi Narsaiah as his father since long tune and there is no scope for the plaintiff to attribute that all those documents are concocted and brought into existence for the purpose of the suit ( 16 ) THE trial court as well as the 1st appellate court discussed all the above aspects in detail and the findings were given on the basis of the relative merits and the material available on record. Since the findings were given on the basis of the evidence available on record. Since the findings were given on the basis of the evidence available on record. I do not find any perversity in the findings of the 1st appellate court and they do not suffer from any infirmity. ( 17 ) THE learned Counsel for the appellant cited the following rulings to impress upon this court that. unless the formalities required to be proved for the adoption are not proved, the plaintiff is not entitled for a decree, therefore die said decree is liable to be set aside. (i) In Madhusudan Das v. Smt. Narayani bai and others the Supreme Court held that a person who seeks to displace the natural succession to property by alleging an adoption, must discharge the burden that lies upon him by proof of the factum of adoption and its validity. The evidence in proof of the adoption should be free from all suspicion of fraud and so consistant and probable as to given no occasion for doubting its truth. Nonetheless the fact of adoption must be proved in the same way as any other fact. (ii) In L. Devi Prasad v. Sntt. Tribeni deo- the Supreme Court held that "under Hindu Law the giving and receiving of a boy are absolutely necessary to the validity of an adoption, they are the operative part of the ceremony. But the hindu Law does not require that there shall be any particular form so far as giving and accepting is concerned. The burden of proving satisfactorily that he was given by his natural father and received by the adoptive father as his adoptive son is on the alleged adopted son. But although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact yet from the long period during which he had been received as an adopted son, every allowance for the absence of evidence to prove such fact is to be favourably entertained. The Supreme Court also held that in case of a Hindu, long recognition as an adopted son, raises a strong presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family being adopted in another family. The Supreme Court also held that in case of a Hindu, long recognition as an adopted son, raises a strong presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family being adopted in another family. (iii) In Rahasa Pandiani v. Gokulananda panda the Supreme Covirt held that non-examination of the priest and the persons alleged to be present and absence of a registered document was a very important circumstance to disprove the alleged adoption. (iv) In Kishorilal v. Mrs. Chaltibai the supreme Court held that in the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exists suspicious circumstances, the same must be explained to the satisfaction of the conscience of the court by the party contending that there was such an adoption. The Supreme Court further held that the court must be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the court and the conscience of the court is not satisfied that the evidence preferred to support such an adoption is beyond reproach. From the trend of the above decisions it is clear that the proof of adoption is required whenever it is denied by the opposite party and it is also revealing that a presumption can also be drawn in favour of validity of the adoption taken place several years ago and the proof of adoption in each and every case is not mandatory. In the light of the above legal position, I do not find any force in the argument of the learned Counsel for the appellant since the adoption was not disputed by the plaintiff in the earlier suit. Unless it is held that the said decree is liable to be set aside, the question of the defendant proving the 3. AIR 1987 SC962. 4. AIR 1959 SC 504 . formalities required for adoption does not arise. The plaintiff questioned the decree on the ground that fraud was played on her. Unless and until there is sufficient evidence to show that the defendant played fraud on the plaintiff, the decree passed by the civil court on the voluntary representation inade by the plaintiff is not liable to be set aside. formalities required for adoption does not arise. The plaintiff questioned the decree on the ground that fraud was played on her. Unless and until there is sufficient evidence to show that the defendant played fraud on the plaintiff, the decree passed by the civil court on the voluntary representation inade by the plaintiff is not liable to be set aside. Both the courts below were right in holding that the plaintiff failed to prove fraud in obtaining the decree by the defendant and the suit must fail. ( 18 ) AFTER going through the memorandum of Appeal, I do not find any force in the grounds of appeal and as there were concurrent findings of fact by the courts below regarding the factum of adoption, I do not find any ground to interfere with the judgment and decree of the 1st appellate court and the appeal must fail. ( 19 ) IN the result, the appeal is dismissed with costs by confirming the judgment and decree of the 1st appellate court in A. S. No. 7 of 1993.