Partly allowed

Yerramilli Subba Rao , Athukuri Rama Subba rao v. Yerramilli Seshagiri, rep. by Gpa Holder v.v.S.Murthy

Telangana HC6 Sept 2011SA/831/2004

Case brief

AI extract

What is this about?

The Court affirmed concurrent lower court findings regarding the validity of an adoption (void due to age) and the lapse of a Will's legacy. It further held that the plaintiff's suit for partition was barred by limitation because the defendant perfected title through adverse possession.

What did the court decide?

Appeal S.A. No.59 of 2004 dismissed; Appeal S.A. No.831 of 2004 partly allowed. No order as to costs.

Yerramilli Subba Rao , Athukuri Rama Subba rao… — Succession and Inheritance | Telangana HC (2011)

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*HON’BLE SRI JUSTICE R.KANTHA RAO

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+ SECOND APPEAL Nos.59 AND 831 of 2004

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% Date: 06-09-2011

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S.A. No.59 of 2004

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BETWEEN:

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#Yerramalli Seshagiri and another …Appellants

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And

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$Yerramilli Subba Rao and others

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Respondents

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S.A. No.831 of 2004

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BETWEEN:

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#Yerramalli Subba Rao

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…Appellants And

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$Yerramilli Seshagiri and others

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Respondents

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! Counsel for appellants: Sri T.S.Anand

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^ Counsel for respondents: Sri V.L.N.G.K.Murthy

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< GIST : >HEAD NOTE:

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? Cases referred:

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HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL Nos.59 AND 831 of 2004

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DATED: 06-09-2011

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S.A. No.59 of 2004

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BETWEEN:

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Yerramalli Seshagiri and another

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…Appellants

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And

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Yerramilli Subba Rao and others

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Respondents

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S.A. No.831 of 2004

BETWEEN:

Yerramalli Subba Rao

…Appellants And

Yerramilli Seshagiri and others

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Respondents

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HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL No.59 AND 831 of 2004

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COMMON JUDGMENT:

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These two second appeals arise out of the decree and judgment dated 21.11.2003 passed by the VI Additional District Judge, (Fast Track Court ), East Godavari District, Rajahmundry in A.S.No.220 of 1998 confirming the decree and judgment dated 11.09.1998 passed by the Senior Civil Judge, Amalapuram in O.S.No.28 of 1991.

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S.A.No.59 of 2004 is filed by the plaintiff, whereas S.A.No.831 of 2004 is filed by the first defendant. Since these two appeals arise out of the same decree and judgment and the contesting parties being the same, they are disposed of by the following common judgment.

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I have heard Sri T.S.Anand, learned counsel for the appellants/plaintiffs in S.A.No.59 of 2004 and Sri V.L.N.G.K.Murthy, learned counsel appearing for the appellants/first defendant in S.A.No.831 of 2004

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For the sake of convenience, the parties will be referred as “the plaintiffs and the defendants.”

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The first plaintiff filed the suit for partition of her half share in the schedule mentioned properties

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and for partition of the same and to convert her joint possession into separate possession of her share and to declare the second plaintiff’s 1/9^th share out of the undivided one half of the plaint schedule properties and for passing final decree, for delivery of plaintiffs separate share by evicting the defendants as per necessity and for accounting of the profits from the date of suit till the delivery of possession by defendants 1, 9 to 12.

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The brief averments of the plaint are as follows:

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The second plaintiff is the daughter of the first plaintiff, the defendants 1 to 7 and father of 8^th defendant late Satyanarayana Murthy are the issues of the first plaintiff through her husband Venkata Suryanarayanamurthy. Suryanarayana Murthy died three years prior to the filing of the suit. 8^th defendant is the only survived issue of late Suryanarayana Murthy. The first plaintiff’s mother Ayyagari Venkata Ramanamma, wife of Satyanarayana Murthy and her sister Devaguptapu Mahalakshmamma Wife of Suryanarayana Murthy died. Mahalakshmamma died subsequent to the demise of Venkata Ramanamma. Their sister is one Athukuri Satyavathi. A.Veera Venkata Lakshmi Suryanarayana Murthy is the husband of Satyavathi. A.V.V.Lakshmi Suryanarayana Murthy died about 25 years prior to the

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filing of the suit. A.V.Ramanamma and Mahalakshmi were living along with the first plaintiff and her husband at Anatavaram. The first plaintiff’s husband Venkata Suryanarayana Murthy worked as Village Karanam till 1982. A.V.V.L.Suryanarayana Murthy executed a registered sale deed dated 20.01.1950 while in sound and disposing state of mind in respect of the plaint schedule property which was his self acquired property. He bequeathed all of his properties in favour of his wife for his life and the vested reminder in favour of the person if any was adopted by his wife Satyavathi. After the death of A.V.V.Lakshmi Suryanarayana Murthy, Satyavathi came into possession of her husband’s property. Satyavathi executed a registered Will dated 01.07.1956 in a sound and disposing state of mind and she died about 15 years prior to filing of the suit. Under the said Will, she bequeathed her property in favour of her sister Venkata Ramanamma and Mahalakshmamma in equal halves. In the said Will, she imposed a condition for development of property of Mahalakshmi in favour of the grand children of Venkata Ramanamma in case of death of Venkata Ramanamma during the life time of Mahalakshmamma. But Mahalakshmamma died issueless. After Venkata Ramanamma, Mahalakshmamma’s husband also pre-deceased her.

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After the demise of Satyavathi and Mahalakshmamma, the first plaintiff’s mother Venkata Ramanamma came into possession of the plaint schedule properties and used to manage them. Unfortunately both the legatees under the Will i.e. Venkata Ramanamma and Mahalakshmamma predeceased the testratrix Satyavathi. After the demise of Satyavathi, the first plaintiff became entitled to the undivided share in the schedule properties as per the provisions of Hindu Succession Act, 1956. Insofar as other half share in the plaint schedule property is concerned, the second plaintiff and the defendants 1 to 7 and 8^th defendant as the heirs of his father Satyanarayana Murthy became jointly entitled to it. Hence they are entitled to 1/9^th share in the undivided half share of the plaint schedule properties.

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The plaintiffs 1 and 2 and the defendants 1 to 8 are in joint possession insofar as undivided half share of the first plaintiff and 1/9^th share each belonging to the second plaintiff and defendants 1 to 8. Till the death of the first plaintiff’s husband Venkata Suryanarayana Murthy, there was cordial relationship between the first plaintiff and the first defendant. The first defendant had no independent right in the property. He, in collusion with defendants 9 to 11 is claiming the right in the property. The defendants 9

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to 11 are in actual possession of Ac.1.50 cents. He is having only 1/9^th share in the half of the plaint schedule property. He is not allowing the plaintiffs to collect the usufruct from the property covered by items 1(b) and Item 2. He has been avowing that he inducted defendants 9 to 12 under certain documents. The 13^th defendant despite having knowledge regarding the rights of plaintiffs and defendants 2 to 8 is trying to bring into existence some fixitious documents and hence, he is also added as a party. The first defendant was born on 16.03.1942 at 9.55 AM. He was married on 29.05.1969 at 8.21 AM. He is frivolously proclaiming that he was adopted by Satyavathi on 01.05.1968 and executed adoption deed adopting him. On the said date i.e on the date of adoption he was aged 20 years. Hence, any such adoption is void under Hindu Adoptions and Maintenance Act. The first plaintiff never consented for the adoption. Hence, any such adoption deed is void and unenforceable. Under the guise of adoption, the first defendant is attempting to sell the property to 13^th defendant. There are strained relations between the plaintiffs and the first defendant. The first plaintiff got issued notice on 12.03.1991. She again issued another registered notice dated 23.03.1991. Thereafter, she filed the suit.

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During the pendency of the suit a sale deed dated 20.09.1995 for a sum of Rs.1,24,000/- in favour of the 14^th defendant for Item No.2 of plaint schedule property was brought in to existence by the first defendant. The said sale deed is not true, valid and binding on the plaintiffs. Therefore, the 14^th defendant was impleaded as per orders dated 07.04.1998 in I.A.No.281 of 1998.

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In the course of his written statement, the first defendant contended as follows:

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Satyavathi adopted the first defendant on 01.05.1968 in the presence of relatives and villagers and the adoption took place in accordance with Hindu Sastras. Dattatahomam was also performed. There was a ceremony of taking and giving. The first plaintiff and her husband, who were the natural parents of the first defendant, gave the first defendant in adoption to late Satyavathi. An adoption deed was also executed on 01.05.1968 by Satyavathi and it was registered on 04.05.1968. Subsequent to the adoption, Satyavathi got performed thread marriage of the first defendant. In view of the adoption and without relief for cancellation of the adoption deed, the suit filed by the plaintiffs is not maintainable.

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The plaint schedule properties originally belonged to A.V.V.L.Suryanarayana Murthy. He executed a Will dated 20.01.1950 in favour of his wife Satyavathi.

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He also authorized his wife to adopt a boy of her choice after demise of her husband. After demise of her husband, Satyavathi came into possession of the plaint schedule properties. She executed a registered Will in a sound and disposing state of mind bequeathing all her properties to her sisters viz. Venkata Ramanamma and D.Mahalakshmamma giving them equal shares. The vested remainder in the share of Mahalakshmamma was bequeathed in favour of the grand children of Venkata Ramanamma. These dispositions were made to be operative only in the event of non-adoption by Satyavathi. In view of the adoption of the first defendant by Satyavathi, the dispositions made in the said Will dated 01.07.1956 became inoperative. Satyavathi died on 06.09.1976. The first defendant became absolute owner of the plaint schedule properties on the demise of Satyavathi. Since then, he has been in continuous possession of the said properties in his own right. The registered Will dated 01.07.1956 is fraudulent. It must have been a forged will brought into existence by fraud. In any view of the matter, the first defendant has been in possession and enjoyment of

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the plaint schedule properties in his own right and has been paying taxes since 1976. Hence, he perfected his title to the property by way of adverse possession.

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The first defendant constructed a house at Anathavaram village with his personal funds. He leased out the coconut trees in item 1(a) and 1(b) of plaint schedule and the coconut trees standing around the said building to 9^th defendant. He also leased out item 2(a) and (b) properties comprising Ac.1.50 cents to 10^th defendant even prior to 1976 even during the life time of Satyavathi. Even after 1976, they are continuing as tenants paying rents. The defendants 1 to 13 have nothing to do with the plaint schedule properties. The first plaintiff, who is natural mother of this defendant was allowed to reside in the building constructed by this defendant in item No.1(a). The permissive possession cannot confer any right on her. The house was constructed in the year 1983.

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The plaintiffs have no right in the plaint schedule properties. The plaint schedule properties are absolute properties of the first defendant and the suit is also bad for mis-joinder and non-joinder of the parties. The plaintiffs are not in joint possession of the property. The suit is also barred by limitation. This defendant has perfected his title to the property

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by adverse possession. The plaintiffs are therefore, estopped from claiming any title to the plaint schedule properties, since they admitted the adoption and they never questioned the adoption made in 1968. The plaintiffs never claimed any rights within 12 years prior to the date of suit. Hence, the suit is liable to be dismissed.

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The 5^th defendant filed her written statement totally supporting the version of the first defendant. The defendants 9 and 10 filed their written statement adopting the legacies under the first defendant of the properties mentioned by the first defendant in his written statement.

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The 14^th defendant filed written statement contending that he is a bona fide purchaser for valuable consideration of Rs.1,24,000/-. He purchased 0.59 cents of land in R.S.No.275/2 and Ac.0.96 cents in R.S.No.275/1 and 275/3 in total to an extent of Ac.1.50 cents situated in Anathavaram village. These properties correspond to item Nos.2(a) and 2(b) of the plaint schedule properties. He purchased them from the first defendant and has been in possession and enjoyment of the said properties in his own right with absolute title and ownership. The plaintiffs are aware of the said transaction. They never objected for the sale of the property and therefore, they are estopped

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from questioning the sale in his favour by the first defendant. There was never any joint possession as alleged by the plaintiffs. The first defendant never held possession on behalf of the defendants 2 to 8. He has been in possession and enjoyment of the properties in his own and exclusive right.

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The plaint does not disclose as to how the first plaintiff got half share and the other plaintiff and defendants 1 to 8 got the remaining half share. Admittedly, Mahalakshmamma predeceased Satyavathi , as such Venkata Ramanamma did not succeed to any property on the death of Satyavathi. The plaintiffs are therefore, not entitled to any share in the plaint schedule properties.

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In any event, the defendants and their predecessors perfected their title to the respective properties by adverse possession since they have been in possession and enjoyment of the property for over the statutory period in their own right. The 14^th defendant further stated that he also adopts the written statement filed by the first defendant on other aspects.

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Accordingly, the plaint schedule properties are the

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self-acquired properties of late Atukuri Veera Venkata

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Lakshmi Suryanarayana Murthy. They pleaded that the said A.V.V.L.Suryanarayana Murthy executed a registered Will in favour of his wife Satyavathi on 20.01.1950 bequeathing all his properties in her favour and vested remainder in favour of the person if any was adopted by his wife Satyavathi. The first plaintiff is the mother of the second plaintiff, defendants 1 to 7 and father of 8^th defendant Venkata Suryanarayana Murthy. The first plaintiff is the daughter of one Ayyagari Venkata Ramanamma, who is the wife of Satyanarayana Murthy. Devaguptapu Mahalakshmamma is her sister. Mahalakshmamma died subsequent to the demise of Venkata Ramanamma.

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The Will executed by late A.V.V.L.Suryanarayana Murthy in favour of Styavathi is marked as Ex.A.2. Both the Courts below held that the said will is a registered document of more than 30 years old, Suryanarayana Murthy having no issues executed a Will in favour of Satyavathi conferring right on her adopting a boy of her choice since the scribe and attestors of the said Will are no more viewed its execution proved and the same as genuine document having regard to the facts and circumstances of the case.

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The plaintiffs based their case on a registered

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Will dated 01.07.1956 executed by Satyavathi. Under the said Will, the testatrix Satyavathi bequeathed all her properties in favour of Ayyagari Venkata Ramanamma and Devaguptam Mahalakshmamma giving them equal shares in the properties she imposed a condition in the said Will for development of the property of Mahalakshmamma in favour of the grand children of Venkata Ramanamma in case of death of Venkata Ramanamma during the life time of Mahalakshmamma. But Mahalakshmamma died issueless. After Venkata Ramanamma, Mahalakshmamma also pre-deceased her. According to the plaintiffs after the demise of Satyavathi and Mahalakshmamma rights were devolved on the first plaintiff’s mother as per the Will dated 01.07.1956 which is marked as Ex.A.3.

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21 The learned trial Court held that since Venkata Ramanamma as well as Mahalakshmamma died prior to the death of testatrix, the legacy under the Will has elapsed under the provisions of Section 105(2) of the Indian Succession Act.

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However, the learned appellate Court held that since the testatrix Satyavathi imposed a condition for development of property of Mahalakshamma in favour of grand children of Venkata Ramanamma in case Venkata Ramanamma died during the life time of Mahalakshmamma and Mahalakshmamma died

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issueless and the husband of the Mahalakshmamma also pre-deceased her, the first plaintiff, who is the daughter of Venkata Ramanamma, is entitled to half share in the property as per Section 109 of the Indian Succession Act. The learned appellate Court thus, took a different view to that of the trial Court as regards the entitlement of the share of the first plaintiff by virtue of Ex.A.3-Will.

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As regards the contention of the first defendant both the Courts have concurrently held that it is mentioned in Ex.A.3 adoption deed that the first defendant was adopted by Atukuri Satyavathi and it is a registered document. The plaintiffs contended that the first defendant was aged more than 16 years on the date of said adoption which allegedly took place on 01.07.1968 and the said adoption is not valid. Both the Courts below referring to Section 19(iv) of the Hindu Adoptions and Maintenance Act, 1956 which lays down that the person adopted must not have completed the age of 15 years unless there is custom of usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption the adoption in the present case is not valid. Both the Courts below also took into consideration the evidence on record which discloses that the date of birth of the plaintiff was 16.03.1942 and adoption took place on 01.05.1968. The said fact

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is also admitted by the first defendant, who was examined as DW.1 to the effect that the date of birth was recorded as 16.03.1942 and Ex.A.1 letter is in the handwriting of his father and his date of birth under Ex.B.1 was also in the handwriting of his father which is also mentioned in the school records and it is admitted that he was borne on 16.03.1942 and so on the date of adoption he was more than 26 years. Both the Courts below further considered the fact that the first defendant did not plead and prove any custom or usage applicable to the parties according to which the boy over the age of 15 years could be adopted in their community. Though the first defendant could be able to prove that he was adopted under Ex.B.3 adoption deed, both the Courts below held that since it was contrary to the specific provisions of Hindu Adoptions and Maintenance Act, 1956, the adoption is void. Both the Courts below referred to Section 5 of the Act which declares that any adoption made in contravention of the provisions of the Act shall be void.

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Thus, both the Courts below have concurrently held that since the adoption pleaded by the first defendant violates Section 19(iv) of the Hindu Adoptions and Maintenance Act, 1956 the adoption is void.

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However both the Courts below referring to the

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evidence adduced by the defendant and pleadings of both parties, concurrently held that the first defendant was in possession and enjoyment of the schedule mentioned properties along with Satyavathi during her life time and that after her death in the year 1976 he has been in possession and enjoyment of the properties in his own right to the exclusion of the remaining parties to the suit, his possession is adverse to that of the first plaintiff and dismissed the suit of the first plaintiff though the first appellate Court held that the first plaintiff is entitled for share in the plaint schedule properties as per Section 109 of the Indian Succession Act. On this aspect, the trial Court’s finding is that as per Section 105 of the Indian Succession Act, the legacy under the Will executed by Satyavathi elapses and the first plaintiff is not entitled for any share in the schedule mentioned properties. The said finding is however, reversed by the first appellate Court on the ground that Section 109 of the Act applies, but not Section 105.

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Both the Courts have concurrently held that the first defendant perfected his title to the property by adverse possession. They also held concurrently that since the first plaintiff did not claim any rights in the property for over a period of 12 years prior to the filing of the suit and therefore, her right to claim partition of the properties is barred by limitation.

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The following substantial questions of law are involved for consideration in the present second appeals. They have been formulated and the learned counsel on either side are heard on the said substantial questions of law.

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1. Whether the first plaintiff can maintain the second appeal questioning the mere finding regarding the validity of adoption since the decree passed by the trial Court which is confirmed by the first appellate Court in his favour?

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1. Whether the first appellate Court has not correctly understood the bequeath made in Ex.A.3 since the entire reading of the document indicates that the property does not vest under Ex.A.3 Will in any body except the two sisters Mahalakshmamma and Venkata Ramanamma, who pre-deceased Satyavathi and as such the daughter of one of the sisters i.e. the first plaintiff cannot acquire any right by virtue of Ex.A3 Will despite recitals made by Satyavathi in the Will as to the development of the Property by Mahalakshmamma in favour of the grand children of Venkata Ramanamma in the event of death of Venkata Ramanamma during the life time of Mahalakshmamma.

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1. Whether the first appellate Court went wrong in holding that Section 109 of Indian Succession Act is applicable to the facts of the present case and therefore, whether the trial Court is right in holding that the legacy under Ex.A.3-Will lapses by virtue of the provisions of Section 105 of the Indian Succession Act?

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1. Whether both the Courts below erroneously held that the first defendant perfected his title to the property by adverse possession since he did not specifically pleaded ouster against the first plaintiff and other co-sharers.

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1. Whether the suit for partition filed by the plaintiffs is barred by limitation for not bringing the same within the time allowed by law more particularly in view of the fact that the first defendant is the exclusive possession of the schedule mentioned properties in his own right?

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Let me now deal with the substantial questions of law involved in the second appeal. In fact, the question as to whether the first defendant in whose favour the trial Court passed the decree which was also confirmed by the first appellate Court can challenge the finding regarding adoption which went against him is not a substantial question of law. However, since the objection was taken by the first

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plaintiff with regard to the right of the first defendant raising such question in the second appeal, this Court is under a duty to answer the said question. Rule 22 of Order 41 lays down in clear terms that:

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“Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross objection) to the decree which he could have taken by way of appeal. The provision further lays down that any such cross objection shall be in the form of Memorandum of Appeal and the Provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.”

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Therefore, in the instant case, Rule 22 of Order XLI enables the first defendant to challenge the finding of adoption by preferring an appeal though the decree is in his favour.

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However, as regards the merit of contention raised by the first defendant on the issue of adoption decided by both the Courts below, it may be stated that there is evidence showing that Satyavathi adopted the first defendant, it is also evidenced by a

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registered adoption deed. As rightly held by both the Courts below, the adoption is not valid since the said adoption is offending the provisions of Section 19(iv) of the Hindu Adoptions and Maintenance Act, 1956. By positive evidence as well as from the admissions of the first defendant, the plaintiffs could be able to administrate that the date of birth of the first defendant is 16.03.1942, he was allegedly adopted on 01.05.1968 under Ex.B.3-adoption deed and therefore, he was aged more than 26 years on the alleged date of adoption. Hence the concurrent findings arrived at by the trial Court declaring the adoption of the first defendant void, does not require any interference in this second appeal and the said finding is affirmed.

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On the crucial question as to the construction and legal effect of Ex.A.3-Will executed by Satyavathi in favour of Mahalakshmamma and Venkata Ramanamma, the learned trial Court and the first appellate Court rendered different findings. The learned trial Court was of the view that since both the legatees under the Will viz Mahalakshmamma and Venkata Ramanamma pre-deceased the testatrix Satyavathi bequest lapses as per provisions of Section 105 of the Indian Succession Act. Whereas, the learned first appellate Court took the view that since there was a provision made in the Will for development of the property in favour of the grand

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children of Venkta Ramanamma, the first plaintiff acquires a right in the property by virtue of Ex.A.3 Will and the Will as a whole does not lapse as per the provisions of Section 109 of the Indian Succession Act.

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Now it is necessary to look in to the recitals of Ex.A.3 Will executed by Satyavathi insofar as the crucial issue is concerned. The schedule mentioned properties are admittedly the self acquired properties of A.V.V.L.Suryanarayana Murthy, who is the husband of Satyavathi. He executed a registered Will dated 20.01.1950 in favour of Satyavathi bequeathing all his properties in her favour. He also permitted her under the said will to adopt a boy of her choice. This Will is marked as Ex.A.2.

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During her life time, Satyavathi executed Ex.B.1 registered Will dated 01.07.1956 bequeathig her properties in favour of her two sisters Mahalakshmamma and Venkata Ramanamma giving them equal shares in the entire property. Ex.A.3 Will reveals that on the date of execution of the said Will Satyavathi can adopt any boy. It is recited in the Will that after the death of Mahalakshmamma her half share shall go to Venkata Ramanamma and thereafter, Venkata Ramanamma shall be entitled to the entire property bequeathed under the Will by Satyavathi. It is further recited in the Will that even during her life

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time Satyavathi can adopt any boy and Mahalakshmamma is only permitted to enjoy certain property mentioned in the Will, but in case of adoption made by Satyavathi, her entire property shall be vested in the adopted son with full rights.

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Now it is necessary to refer the Sections 105 and 109 of the Indian Succession Act. Section 105 of the Indian Succession Act reads as follows:

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“105. in what case legacy lapses (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it appears by the will that the testator intended that it should go to some other person.

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(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.

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Whereas Section 109 of the Indian Succession Act reads as follows:

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“109. When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s life: Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the life time of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect if the death of the legatee had happened immediately

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after the death of the testator, unless a contrary intention appears by the will.”

¶103

In the present case, the legacy under the Ex.A.3 Will dated 01.07.1956 executed by Satyavathi lapses since it is not mentioned in the said Will by Satyavathi that in the event of death of legatee under the Will, the property should go to some other person. Thus, the testatrix does not provide any alternative in the Will unless it is mentioned in the Will in clear terms as to who would be come the legatee in the event of the legatee pre-deceasing the testatrix, it will lapse automatically as per Section 105 of the Indian Succession Act. Further, Satyavathi also did not make any mention in the Will that in the event of the legatees pre-deceasing her, the legacy will not lapse and somebody would be entitled to take the legacy.

¶104

In the Will dated 01.07.1956-Ex.A.3 Satyavathi clearly stated that in case she adopts any boy during her life time and after the death of the legatees, the entire property shall be vested in the adopted son with full rights. In the instant case, since the adoption was proved to be invalid, the property shall not be vested in the first defendant, but it shall lapse and form part of the residue of property of testatrix. Section 109 of the Indian Succession Act therefore will not come into play. The following conditions shall be

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fulfilled to attract the Section 109: (a) the bequest must be to child or a lineal descendant of the testator; (b) the child or lineal descendant dies in the life time of the testator leaving a lineal descendant who survives the testator; (c) there is no contrary intention in the Will. In the present case, Satyavathi had clearly mentioned in the Will that in case she adopts a boy, the entire property after her death shall go to the said boy, who was adopted by her. As already said in view of the invalidity of adoption declared by both the Courts below and confirmd by this Court in the present second appeal, the legacy lapses and forms part of the residue of the property of Satyavathi.

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Another crucial question which requires to be determined in the present case is whether both the Courts are correct in holding that the first defendant perfected his title to the property by adverse possession and that the suit filed by the first plaintiff for not bringing the same within the time allowed by law is barred by limitation.

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The contention of the first defendant in the alternative is that he was in possession of the entire schedule mentioned properties along with Satyavathi till 1976 since after her death he has been in continuous possession and enjoyment of the property openly asserting hostile title against everybody

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including the plaintiffs and therefore, he perfected his title by adverse possession. As rightly held by both the Courts below in the instant case there is voluminous evidence to show that Satyavathi brought up the first defendant and in fact, she adopted him under Ex.B3 adoption deed and the first defendant was living with the Satyavathi as her son during her life time. There was no claim asserting rights in the property by the plaintiffs or any other persons even during the life time of Satyavathi or after her death. The evidence of DWs.3, 5, 6 and 7 clearly indicates that the first defendant had been residing with Satyavathi and had been enjoying the schedule properties along with her. Their evidence also further reveals that after her death he has been exclusively enjoying the property with absolute rights by openly asserting his title. The possession of the first defendant, therefore obviously open, real and uninterrupted to the knowledge of the remaining parties to the suit. The 9^th defendant and 10^th defendant admitted that they have been tenants under the first defendant since long time and they have been paying rents to him. Exs.B.26, 27 and 29 clearly show that they have been the tenants of certain items of land in the schedule mentioned property and have been paying rents to the first defendant. The 9^th defendant is the tenant of item

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No.1(a) and 10^th defendant is the tenant of item No.2(a) of the schedule properties. Item No.2 (b) is in possession of the

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12^th defendant. Item No.2 (a) was sold to the 14^th defendant. PW.1 admitted in her evidence that the defendants 9, 10 and 12 are in possession of the items of properties claimed by them and they are the tenants of the first defendant. Ex.B.73 dated 18.07.1977 discloses that the first defendant himself sold some properties of Satyavathi. Both the Courts have concurrently held that the plaintiffs failed to establish that they ever enjoyed the items of the properties at any point of time. In fact, no material was placed by the first plaintiff showing that she was in possession of any of the properties at any time. As regards the house property, it is evident from Exs.B.4 to B.12 that the first defendant has been paying house tax since 1986. Ex.B.12 particularly reveals that the first defendant paid the tax for the year ending with March, 1996. The demand notices and house tax receipts clearly indicate that the house property was assessed in the name of the first defendant and he was paying the house tax. There is no evidence to show that either the first plaintiff or any other person questioned the right of the first defendant as to his dealing with the properties exclusively Ex.B.12 and B.14 reveal that the first defendant paid certain

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amount to the municipality and applied for building plan. Ex.B.15 is the Xerox copy of the blue print and estimates with regard to the construction of the house filed by him.

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From the facts and evidence, it is obvious that during the life time of Satyavathi, the first defendant was living with her and was in possession and enjoyment of the schedule mentioned properties along with her. Satyavathi died in the year 1976, since then the first defendant has been in exclusive possession and enjoyment of the schedule properties in open assertion of right and title. The open and exclusive possession of the first defendant is within the knowledge of the first plaintiff and the other parties to the suit, but there is no evidence to show that any of them ever raised any objection. Satyavathi died in the year 1976. The first plaintiff filed the suit in the year 1997 i.e. after lapse of 15 years.

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One of the contentions raised by the learned counsel appearing for the first plaintiff is that the plaintiffs are the co-sharers and in the absence of any ouster pleaded by the first defendant, both the Courts below went wrong in holding that the first defendant perfected his title by adverse possession. But as rightly contended by the learned counsel for the first defendant, the first plaintiff and the other contesting

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parties to the suit are not the co-sharers, therefore, the ouster need not be pleaded by the first defendant. Even otherwise, the first defendant has specifically pleaded in the written statement that during the life time of Satyavathi he was in possession and enjoyment of the property along with Satyavathi and since after her death in the year 1976, he has been in exclusive possession of the property in open assertion of exclusive right and title to the knowledge of first plaintiff and others. The plea of ouster is implicit in the plea of adverse possession taken by the first defendant. There is voluminous evidence in the instant case showing that the first defendant has been asserting hostile title against the plaintiffs and other contesting parties to the suit and he exercised his right openly with an adverse animus to the knowledge of the plaintiffs. Both the courts below therefore, are perfectly justified in holding that the first defendant perfected his title to the property by adverse possession.

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The plaintiffs filed the suit for partition of the schedule mentioned properties and for separate possession basing on their title. They have to institute the suit within 12 years when the possession of the first defendant became adverse to them. In the instant case, soon after the death of Satyavathi in the

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year 1976, the possession of the first defendant in respect of the schedule mentioned properties became adverse to the plaintiffs, but the first plaintiff instituted the suit in the year 1996 i.e. beyond the period of 12 years. The suit filed by the plaintiffs is therefore, barred by limitation as per Article 65 of the Limitation Act. The concurrent findings recorded by the trial Court as well as the first appellate Court on the issue that the first defendant perfected his title to the plaint schedule properties by adverse possession does not require any interference in this second appeal.

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In the result, the appeal filed by the plaintiffs i.e. S.A.No.59 of 2004 is dismissed and the appeal filed by the first defendant in S.A.No.831 of 2004 is partly allowed. There shall be no order as to costs.

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_______________ R. KANTH RAO,J

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Date: 06-09-2011 Note: L.R. copy to be marked b/o kvrm

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HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL Nos.59 and 831 of 2004

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Date: 06-09-2011

Yerramilli Subba Rao , Athukuri Rama Subba rao v. Yerramilli Seshagiri, rep. by Gpa Holder v.v.S.Murthy

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Yerramilli Subba Rao , Athukuri Rama Subba rao v. Yerramilli Seshagiri, rep. by Gpa Holder v.v.S.Murthy

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