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1961 Supreme(AP) 158
Andhra Pradesh High Court
Judges : CHANDRASEKHARA SASTRI, P.CHANDRA REDDY
Pendyala Narasimham - Appellant
Versus
Pendyala Venkata Narasimha Rao - Respondent
Decided On : 09-28-61
The consent of the nearest reversioners is not necessary for a valid adoption and the widow is entitled to secure the consent of the other remote agnates for the adoption.
Headnote:
ADOPTION - VALIDITY - CONSENT OF NEAREST REVERSIONERS - ADOPTION OF A BOY FROM A POOR FAMILY - NOT A GROUND TO REFUSE CONSENT - ADOPTION OF A BOY WHO IS NOT A SAGOTRA OF THE ADOPTIVE FATHER - NOT A RELEVANT CONSIDERATION - ADOPTION OF A BOY WHO WOULD DEFEAT THE REVERSIONARY RIGHT OF THE SAPINDAS - NOT A GROUND TO REFUSE CONSENT - ADOPTION OF A BOY WHO IS SUBJECT TO EPILEPTIC FITS - NOT A GROUND TO REFUSE CONSENT - ADOPTION OF A BOY WHOSE SECOND SON IS WILLING TO BE ADOPTED - NOT OBLIGATORY ON THE WIDOW TO ADOPT THE SECOND SON - SUIT FOR RECOVERY OF PROPERTY - FRAME OF THE SUIT - AMENDMENT OF PLAINT TO INCLUDE A RELIEF OF PARTITION - PERMISSIBLE - ORDER 6, RULE 17, C. P. C. - LIBERAL EXERCISE OF POWERS - MESNE PROFITS - ENQUIRY INTO MESNE PROFITS - PLAINTIFF ENTITLED TO A DECREE FOR PROFITS FROM THE DATE OF THE SUIT AND NOT FOR THE MESNE PROFITS.
Fact of the Case:
The plaintiff, the adopted son of Ramalingam, filed a suit for recovering the properties in question, for avoiding the alienations made by the first defendant, and for an account of the management of the properties by the first defendant. The first defendant resisted the claim on the defences that he was not a stranger to the family, that his father and Narasimham constituted members of a joint Hindu family, to which the properties in dispute belonged and consequently all the properties survived to him on the demise of the sons of Narasimham, that the plaintiff's adoption, even if true, was not valid since the first defendant or his sons, the only reversioners to the estate, did not give their consent to it, that the assent of persons who were not in any way related to the family was of no consequence, that in any event the alienations prior to the plaintiff's adoption could not be impugned and that there was no liability on his part to account for his management before 1952.
Finding of the Court:
The court found that the plaintiff's adoption was valid, that late Narasimham and Perisetti constituted a joint family, that the properties, the subject-matter of the suit, belonged to the family and as such both were entitled to an equal share therein, that the plaintiff could not question the transfers effected by the first defendant before the adoption and that since there was no proof of any mismanagement by the first defendant, he was not liable to render an account of his management prior to the suit.
Issues: 1. Whether the plaintiff's adoption was valid? 2. Whether the suit for partition was maintainable? 3. Whether the plaintiff was entitled to mesne profits from the date of the suit?
Ratio Decidendi: 1. The court held that the plaintiff's adoption was valid as the first defendant's refusal to consent to the adoption was improper and the widow was entitled to secure the consent of the other remote agnates for the adoption. The court also held that the persons whose consent was obtained by the widow were proved to be the remote agnates of Ramalingam. 2. The court held that the suit for partition was maintainable as the plaintiff was entitled to a half share in the property as the adopted son of Ramalingam and the amendment of the plaint to include a relief of partition was permissible under Order 6, Rule 17, C. P. C. 3. The court held that the plaintiff was entitled to a decree for profits from the date of the suit and not for the mesne profits.
Final Decision: The court dismissed the appeal filed by the first defendant and the cross-objections filed by the respondent. The court also disposed of the other Appeal No. 346 of 1960 with modifications to the final decree.
( 1 ) THIS appeal is directed against the preliminary decree of the Subordinate Judge, Narasaraopet, in O. S. No. 72 of 1953. The first defendant is the appellant. It arises out of an action laid by the respondent herein for recovering the properties in question, for avoiding the alienations made by the first defendant and for an account of the management of the properties by the first defendant the facts material for the purpose of this appeal are briefly these. One Pendyala narasimham had four sons by name Venkayya, Ramalingam, Punniah and Satyanarayana.
( 2 ) THE first of the sons pre-deceased his father. Narasimham died in 1926 leaving behind him three sons Ramalingam, Punniah and Satyanarayana. Ramalingam died in 1930 survived by his widow Anantamma. His younger brothers died in 1934 and 1935 respectively issueless. In 1952, the widow of Ramalingam adopted the plaintiff. Shortly thereafter, the adopted boy required the first defendant by registered notice to deliver possession of all the properties belonging to his adoptive father and to render him an account of the management by the first defendant. As this demand was not complied with, the action giving rise to this appeal was laid. The genealogical table given hereunder will be helpful in understanding the relationship of the parties. The chief averments in the plaint are these. At the time of the death of narasimham, his three sons were young and inexperienced and consequently perisetti, the father of the first defendant, was brought into the family to look after its affairs on the understanding that he would be given something for his services. On the death of Perisetti, his son, the first defendant, assumed management in 1938. The first defendant took full advantage of the situation, viz. , that there was none in the family who was literate. He sold several items of properties of the family with a view to enrich himself and these alienations would not be effective as against the plaintiff. The first defendant was also called upon to render an account of his management.
( 3 ) TO this suit were impleaded the alienees as defendants 2 to 56. The claim of the plaintiff was resisted by the first defendant on the defences that he was not a stranger to the family, that his father and Narasimham constituted members of a joint Hindu family, to which the properties in dispute belonged and consequently all the properties survived to him on the demise of the sons of Narasimham, that the plaintiff s adoption, even if true, was not valid since the first defendant or his sons, the only reversioners to the estate, did not give their consent to it, that the assent of persons who were not in any way related to the family was of no consequence, that in any event the alienations prior to the plaintiff s adoption could not be impugned and that there was no liability on his part to account for his management before 1952. It is unnecessary to refer to the written statements of the other defendants as the alienations in their favour are not in issue in this appeal. The trial Court found that the plaintiff s adoption was valid, that late Narasimham and Perisetti constituted a joint family, that the properties, the subject-matter of the suit, belonged to the family and as such both were entitled to an equal share therein, that the plaintiff could not question the transfers effected by the first defendant before the adoption and that since there was no proof of any mismanagement by the first defendant, he was not liable to render an account of his management prior to the suit. In the result, he has passed a preliminary decree for partition of the properties and allotment of one share to the plaintiff. He also directed that mesne profits should be enquired into in the final decree proceedings. Both the first defendant and the plaintiff brought appeals against that judgment as both of them were dissatisfied with it.
( 4 ) IN the main appeal filed by the first defendant, the
