1981 Supreme(AP) 335
Andhra Pradesh High Court
Judges : PUNNAIAH
K.Punnaiah - Appellant
Versus
K.Lakshmi Narasamma - Respondent
A.S. No. 888/75
Decided On : 12-31-81
Advocates Appeared :
MR. N. CHANDRAMOULI, MR. A. HANUMANTHA RAO
Headnote:HINDU LAW - Adoption - Doctrine of relation back Alienations made by the sole surviving coparcener prior to adoption - The adopted son is bound by such alienations.
HELD: It is now well settled that the right to challenge the alienations on the ground that they were not made for legal necessity or for the benefit of the estate of the joint family is available only in cases where there is limited power to alienate just as in the case of a widow or in the case of a manager of a joint family, who wants to alienate the property without the consent of other members of the coparcener, But there is no such limit in the case of a sole surviving coparcener. The position of the sole surviving coparcener is different from a manager of a joint family. The sole surviving Coparcener cannot be equated with a manager of a Joint Hindu Family. The sole surviving coparcener has the power to treat the property which he is enjoying as his absolute property and it is not fettered by the contingency of an adoption being made by a widow in the family. Though the adopted son s right to property ordinarily relates back to the date of his adoptive father s death. it will not affect the alienations made by the sole surviving coparcener prior to his adoption.
( 1 ) THE appellant is the plaintiff, who filed the suit for recovery of plaint A schedule property from the fifth defendant and B schedule property from defendants 6 to 9 and for partition of C schedule properties into two halvas and for possession of one such half and finally for mesne profits of rs. 6,000/- and future mesne profits.
( 2 ) CHENNAIAH and Nsrasaiah are the sons of Ramaiah. Chennaiah had two sons, Appaiah and Narasinhaiah. Appaiah died in 1985 issueless leaving behind his widow Narasanma. Narasimhaiah died leaving behind his widow the first defendant and daughters who are defendents 2 and
( 3 ) NARASAIAH died leaving behind his sons, Subbaiah, Krishnaiah, Audaiah and Venkalarayudu. Krishnaiah, Audaiah and Venkatarayudu died. Subbaiah is alive. Venkatarayudu s son Is P. W. 4. Narasamma, the widow of Appaiah, adopted the plaintiff, who is the son of the fifth defendant. The fifth defendant married Narasamma s sister s daughter. Chennaiah gave A schedule property to Narasamma, the Plaintiff s adoptive mother, towards her maintenance in 1905 under the Original of Ex A. 5 narasamma s father Ramaiah and his son Narasaiah gave B schedule property to nerasamma for her maintenance with life interest in 1914 under the registered settlement deed. Ex. A 6. Narasimhaiah, the sole surviving coparcener executed a settlement deed conveying C schedule properties in favour of his wife, D. I, and his two daughters D2 and D3 under the original of Exa. B. 1, B2 and B. 3 on 1-4-1956. 3. The plaintiff claimed plaint A and B schedule properties as the adopted son of Narasamma and Appaiah and also half share in C schedule properties. In respect of A schedule property he claims that inasmuch as a life intrest was created under Ex A 5 in favour of Narasamma the adoptive mother of the plaintiff, Naresamma s rights in A schedule property became enlatged into an absolute one under Section 14 (1) of the Hindu succession Act, 1956. and hence, he being the adopted son of Narasamma, is entitled to A schedule properties. In respect of B schedule proparties, the plaintiff claims that inasmuch as B schedule proposes were given to Narasamrna by her father and brother, Nerasamma is entitled to b schedule properties with absolute rights and consequently, he, being the adopted son of Narasamma, is entitled to B schedule properties.
( 4 ) IN respect of C Schedule property, the plaintiff contends that the C Schedule properties are joint family properties of his adoptive father appaiah, and Narasimhaiah the husband of the first defendant and the father of defendants 2 and 3, and after the death of his adoptive father Appaiah, in 1904, Narasaiah had been in possession of the C Schedule properties as the Manager of joint family and Narasimhaiah is therefore not entitled to gift the joint family properties in favour of defendants 1 to 3, and the gift deeds are not binding upon the plaintiff insofar as his half share in C schedule properties is concerned and he is therefore, entitled to partition of C Schedule properties and possession of his half share.
( 5 ) DEFENDANTS 1 to 3 and defendants 6 to 9 resisted the suit, AM the contesting defendants contended that the adoption of the plaintiff by narasamrra is not true and valid They also sontended that imrespect of a schedule proparty, arasmma was given only life interest, and the vested remainder, therefore, had to go back to Narasimhaiah who was the sole surviving copaceter after the death of Appaiah, and the plaintiff s contention that the life interest was enlarged into an Absolute one under section 14 (1) of the Hindu Scuccession Act, is untenable They also contend that Narasimhash the sole surviving copercper gifted C schedule pollerties in favour of defendants 1 or 3 out of love and effection, end the gift deeds in favour of defendants 1 to 3 were therefore, valid and the plaintiffs claim for partition of C Schedule properties is untenable. The defendants, there are conterd that deferdants 1