JUDGMENT [ENTITY], J.
1. [CASE NUMBER] was filed by the plaintiff-appellant herein in the Court of the Additional Subordinate Judge, Ongole. [CASE NUMBER] arises out of [CASE NUMBER]. Transfer [CASE NUMBER] arises out of [CASE NUMBER] on the file of the Addl. Subordinate Judge, Ongole. Transfer [CASE NUMBER] arises out of [CASE NUMBER] on the file of the Addl. Subordinate Judge, Ongole. [CASE NUMBER] was filed by one [ENTITY], who was the plaintiff in the suit. [CASE NUMBER] was also filed by [ENTITY]. All the suits were disposed of by the learned Additional Subordinate Judge, Ongole by a common judgment. [CASE NUMBER] was dismissed in respect of B to F schedule properties. It was declared that the plaintiff is entitled to recover possession of A schedule properties from the 6th defendant therein except the properties settled on the 6th defendant under Ex.B-9. The plaintiff was allowed to file a separate petition for determination of mesne profits both past and future. The plaintiff and the 6th defendant were made to bear their respective costs. [CASE NUMBER] was decreed in favour of the plaintiff therein against both the defendants jointly and severally. They were further directed to pay interest at the rate of 6% p.a. from the date of suit till the date of realisation. [CASE NUMBER] was dismissed against the first defendant and against the second defendant it was decreed with costs and future interest at the rate of 6% p.a. from the date of suit till the date of realisation.
2. Aggrieved by the aforesaid common judgment and decrees of the Court below, the appellants have approached this Court on various grounds as stated in the appeal memos.
3. In order to appreciate the controversy between the parties in three different suits, it is necessary to narrate few facts as follows:
[CASE NUMBER] was filed by the plaintiff for possession of plaint A, B, C, D and E schedule properties and to put the plaintiff in plaint A schedule properties and to direct the 6th defendant to deliver B, C, D and E movables to the plaintiff and if she fails to hand over the same to the plaintiffs, then the plaintiff had prayed for a money decree against the 6th defendant equivalent to the value of movables with interest from the date of the suit till the date of realisation. It was further prayed that the 6th defendant be directed to render the accounts of outstanding as well as income of the suit properties from 1961 onwards till the date i.e., when the suit is converted into one for possession and to pass a decree against the 6th defendant personally and also against the properties of the first defendant, which are in the hands of 6th defendant, for the amount found due to the plaintiff on payment of requisite Court fee and for future interest.
4. It was further averred by the plaintiff in [CASE NUMBER] that the plaintiff's natural father's name was [ENTITY]. He was a landlord and [ENTITY] in Ongole. The first defendant was issueless and he learnt that the plaintiff's natural father's family has same 'gothra' as that of the first defendant. The natural parents of the plaintiff after consulting the plaintiff's uncle and other relations consented to give the plaintiff in adoption to the first defendant and his wife and the plaintiff was accordingly given in adoption. The first defendant and his wife performed the adoption ceremony i.e., "Sweekara Ceremony" on 19-10-1961 according to Hindu Sastras and customs. As a consequence of the said adoption, the plaintiff became a coparcener along with the first defendant with equal rights.
5. It is further averred by the plaintiff that he lived with the first defendant and his wife for some time after adoption ceremony was completed. But thereafter he started staying along with the natural parents as there was no educational facilities in the village of Martur. The plaintiff was staying with his natural parents at Ongole with the consent of the adoptive parents. Subsequently on 5-6-1964 the first defendant and his wife performed the 'Upanayanam' ceremony of the plaintiff. The first defendant executed a Registered Adoption Deed dated 29-10-1965.
6. It is the further case of the plaintiff that he shifted to Ongole for his higher studies. The first defendant and his wife did not show interest for that and they were showing a sort of luke-warm affection towards the plaintiff. The plaintiff has been working at present as a Clerk in the Syndicate Bank, Ongole. The plaintiff became marriageable age but the first defendant and his wife were not showing interest in getting the plaintiff married.
7. It is the further case of the plaintiff that in the meanwhile the adoptive mother of the plaintiff (wife of the first defendant) died on 31-1-1973. Her death was not intimated to the plaintiff. But, on information the plaintiff went to Martur and performed all the obsequies of his adoptive mother. After the death of the adoptive mother, the plaintiff made all the attempts to bring the first defendant to Ongole so as to make him to stay with the plaintiff where he was serving and also because of the old age of the first defendant. But his attempts proved to be unfruitful.
8. It is the further case of the plaintiff that the joint family of the plaintiff and the first defendant owned and possessed immovable properties more particularly described in the plaint A, B, C, D and E schedules. As the plaintiff was young and was studying till recently and subsequently employed in Ongole, the first defendant alone was managing the joint family properties as a manager. The value of the joint family properties would be more than Rs. 10,000/- or more.
9. It is the further case of the plaintiff that the first defendant after the death of his wife was addicted to bad vices. The plaintiff personally and through mediators requested the first defendant to enter into amicable partition of the joint family properties and to render an account for the income of the properties. But the first defendant has not been co-operating with the plaintiff but went on prolonging the matter and hence the plaintiff was constrained to file the suit.
10. It is the further case of the plaintiff that defendants 2 to 5 are the tenants in possession of the properties mentioned in the plaint 'A' schedule. Therefore, they were impleaded as party defendants to the suit. The first defendant died subsequent to the suit intestate. The plaintiff became absolute owner of the entire properties covered by the suit schedule properties. The 6th defendant herself got added as a party to the suit styling herself to be the widow of the deceased first defendant came into possession of the suit schedule properties shortly before the death of the first defendant taking advantage of the ill-health and helpless condition of the 1st defendant who was very old. The first defendant was not in a sound state of mind for several months before his death. Hence, the plaintiff was required to amend the plaint converting the suit into one for possession of the entire suit properties.
11. The defendants were served with the suit summons. On appearance, the first defendant filed written statement contending that there was no adoption of the plaintiff by him. There was no giving and taking of the child on 19-10-1961. The so-called adoption ceremony is not valid. But the first defendant admitted that he performed the "Upanayanam" ceremony of the plaintiff on 5-6-1964 after adopting him on 4-6-1964. It is further averred that he executed a deed purporting to be a deed of adoption in the year 1965 at the instance of late [ENTITY]. He gave instructions to the scribe to prepare adoption deed. The first defendant is not aware of the recitals in the document.
12. It was further averred by the first defendant that the deed of adoption and the invitation cards printed for the so-called "Sweekaram ceremony" were lost when the Commissioner came for the inventory of the suit schedule properties. It is the case of the first defendant that the plaintiff and his supporters must have kept those two documents to create evidence to support the claim of adoption. The plaintiff is 28 years old. The wife of the first defendant never gave consent for adoption. The first defendant enjoyed the immovable properties by leasing out the lands and gets an annual income to the tune of Rs. 2,500/- which is not sufficient to make his both ends meet. It is further averred by the first defendant that he borrowed a sum of Rs. 3,000/- from the Land Mortgage Bank, Martur. He has also indebted to the 3rd defendant to the extent of Rs. 1,300/- on two pronotes. It was denied that he is lending monies to the others. With these averments it was prayed by the first defendant that the suit be dismissed with costs.
13. Defendants 2 to 5 filed their joint written statement contending that the second defendant has been cultivating the land as a tenant in item No. 1 of the plaint 'A' schedule properties. Last year he raised Virgina Tobacco and it did not yield anything. The tenant in item No. 2 is not added as a party and the 'maktha' for that item is Rs. 40/- per annum. It is further averred by the defendants 2 to 5 that the 3rd defendant is cultivating the land in item Nos.3 and 5 on annual rent of Rs. 1,000/- and Rs. 1,000/- respectively. The 4th defendant stated that he is a lessee in respect of item No. 4 of the plaint 'A' schedule property. It is on sharing system. The 5th defendant stated that he is a lessee of item No. 7 of the plaint 'A' schedule property. The annual rent is Rs. 1,000/-. It is further stated that item No. 8 of plaint 'A' schedule property does not belong to the first defendant. The rents are being paid to the first defendant regularly by these defendants as the first defendant is a lessor. With these averments it was prayed that the suit be dismissed with costs.
14. The 6th defendant filed her independent written statement and contended that she married to the first defendant on 20-6-1973 at Martur. The first defendant was in a sound and disposing state of mind when he executed a registered Will on 23-6-1973. The said Will is perfectly valid and the 6th defendant acquired full rights over all the properties of the first defendant. The original Will was removed by the plaintiff and his supporters when the Commissioner came for inventory and the work of inventory was executed in the absence of the first defendant.
15. It is the further case of the 6th defendant that the first defendant had executed pronotes during his illness in order to enable him to meet the expenses, he borrowed monies. He also executed a Settlement Deed on 27-1-1975 and it was registered on 28-1-1975. The first defendant settled upon the 6th defendant Ac.7-55 cents of land and the southern half in the residential house. It was alternatively pleaded by the 6th defendant that assuming without admitting that the plaintiff is the adopted son of the first defendant, he would be entitled to only a half share in the 'A' schedule properties. It is further stated by the 6th defendant that she has been living with the first defendant eversince her marriage in June 1973 till the death of the first defendant, who died on 31-1-1975. The first defendant was in a sound and disposing state of mind till the last day. Hence, it was prayed that the suit filed by the plaintiff be dismissed with costs.
16. [CASE NUMBER] was filed for recovery of Rs. 1,878/- being the principal and interest due on a pronote dated 26-1-1975 executed by the first defendant with interest at 18% p.a. with costs. It was averred by the plaintiff in the aforesaid suit that the first defendant had borrowed the said amount by executing a pronote from the plaintiff therein when he was ill. Therefore, the suit was filed to recover the aforesaid amount. In the aforesaid suit, the first defendant remained ex parte. The 2nd defendant filed his written statement (who was the plaintiff in [CASE NUMBER] claiming to be the adopted son of the first defendant) with an averment that he is the adopted son of the first defendant. The other averments made in the written statement were the same as in the plaint in [CASE NUMBER]. It is further averred by the 2nd defendant that during the pendency of the suit [CASE NUMBER], this document (the said pronote) got prepared, which is a forged one by the 6th defendant. With this averment, it was prayed that the suit filed by the plaintiff be dismissed.
17. In [CASE NUMBER] the plaintiff filed the suit for recovery of Rs. 1,110-00 being the principal and interest due on a pronote alleged to have been executed by late [ENTITY] (the alleged adoptive father of the plaintiff in [CASE NUMBER]). It was averred by the plaintiff in [CASE NUMBER] that late [ENTITY] has borrowed a sum of Rs. 1,000/- from him for his family expenses and executed a suit pronote and therefore the suit was filed for recovery of the said amount. On presentation of the suit, the first defendant (who happened to be the alleged adoptive father of the plaintiff in [CASE NUMBER]) remained absent. The second defendant (the plaintiff in [CASE NUMBER]) contended that the said pronote is a forged one. Late [ENTITY] had huge properties and that there was no reason for him to borrow money from him and therefore prayed that the suit filed by the plaintiff be dismissed with costs.
18. On the strength of the pleadings in three different suits, the learned Additional Subordinate Judge, Ongole framed the issues. The parties to the suits were allowed to lead oral as well as documentary evidence.
19. In [CASE NUMBER] P.Ws.1 to 11 were examined on behalf of the plaintiff. Defendants examined D.Ws.l to 7. The plaintiff produced certain documents and they were marked as Exs.A-1 to A-22. The defendants also produced certain documents and they were marked as Exs.B-1 to B-56. Exs.X-1 to X-16 were marked by the Court through the witnesses. On hearing both sides, the learned Additional Subordinate Judge, Ongole was pleased to pass the judgment as stated supra.
20. Aggrieved by the judgment and decrees passed in the above suits, the appellant herein i.e., [ENTITY], filed the present appeals.
21. The learned Counsel Mr. [ENTITY] appearing on behalf of the plaintiff-appellant herein submitted at the Bar that the learned Judge erred in dismissing the suit [CASE NUMBER]. The learned Counsel further submitted that the learned Judge did not believe that the appellant herein was the adopted son of the deceased first defendant i.e., [ENTITY], and his wife. It was mainly contended by the learned Counsel that there is ample evidence on record to show that the plaintiff-appellant herein is the adopted son of the first defendant and his wife. The plaintiff had filed the suit for partition and separate possession of his half share in the suit schedule properties claiming himself to be the adopted son of the first defendant and his wife. The first defendant, after filing written statement and before giving evidence, died. Thereafter the 6th defendant got herself imp leaded as a, party defendant claiming to be the second wife of the first defendant. The learned Counsel further submitted that this Court had to decide in these appeals as to whether there was a valid adoption of the plaintiff by his adoptive father i.e., the first defendant in the suit [CASE NUMBER] and his first wife?
22. The learned Counsel Mr. [ENTITY] appearing on behalf of the appellant herein submitted at the Bar that the 6th defendant styles herself as the wife of the first defendant, who alleges to have married the first defendant after the death of his first wife. The learned Counsel further submitted that the validity of the marriage between the first defendant and the 6th defendant has to be decided with reference to certain admissions given by 6th defendant in her evidence who stated that she was attempted to be married to a third party viz., [ENTITY]. The learned Counsel further submitted that if the marriage of the 6th defendant with Mr. [ENTITY] is held to be valid, then the marriage of the 6th defendant with the first defendant is void ab initio. It was pointed out that there is no evidence on record to show that Mr. [ENTITY] and the 6th defendant were validly divorced. The learned Counsel Mr. [ENTITY] further submitted at the Bar that the first defendant immediately after his so- called marriage with the 6th defendant executed a Will Ex.B-16 bequeathing the entire properties in the name of the 6th defendant by ignoring the rights of the plaintiff. The validity of the said alleged Will is challenged on behalf of the appellant herein. One more point, which was placed before this Court for consideration, was whether the first defendant had any right to settle certain identified properties in favour of the sixth defendant during his life time ignoring the fact that there was no partition between the first defendant and his adoptive son, the appellant herein. The learned Counsel pointed out from the judgment of the trial Court that the learned Judge held that the Settlement Deed Ex.B-9, which is alleged to have been executed by the first defendant in favour of the 6th defendant, is a PERSONA DESIGNATA and therefore she is entitled to claim the aforesaid properties not by virtue of her marriage with the first defendant but by virtue of PERSONA DESIGNATA. The learned Counsel pointed out the meaning of PERSONA DESIGNATA from the Law Lexicon page 971. The word PERSONA DESIGNATA is explained in Law Lexicon as follows:
"Where a person is indicated in a statute or legal instrument not by name, but either by an official designation or as one of a class, a question sometimes arises whether he ceases to be the person so indicated on losing his official designation or his character as one of the class, or whether the intention was to single him out as a persona designata. that is, as an individual, the designation being merely a further description of him. Designation personae then, in general, means simply the singling out by description of a party to a deed or contract; or a person taking thereunder such party or person being in turn called 'PERSONA DESIGNATA'. (Ency. of the Laws of England). When difficulty is found in ascertaining whether a person takes as persona designata. the maxim "Designatio unjus est exclusio qlterious et expressum facit cessare tecitum" is applicable; in other words, if one person is specified, another is excluded on the principle that what is expressed makes what is only understood to give way."
The Settlement Deed Ex.B-9, which is produced on record, reads as follows:
"You are my second wife. I have written a; Will earlier and registered in your favour to claim all the properties of mine after my death. At present due to unhealth condition, L am taking medicines for which money is required. As I am unable to go anywhere, I feel it essential in the circumstances to create some financial back ground to you and also you are merely dependent on me for your livelihood and also I feel it as my duty to create financial soundness to you due to belovedness to me, I am settling the property mentioned valued at Rs. 32,000/- to you and handing over all the rights of mine on the said properties to you. From this date, you are entitled to all the rights over the schedule properties by paying all the taxes by enjoying all rights to donate or sell with your sons and grand sons for ever."
With this document on record and also with reference to the persona designata. the learned Counsel submitted that this Court has to decide as to whether the Settlement Deed can be called as a Persona Designata?
23. Before deciding the aforesaid issue raised before this Court, this Court would like to consider whether the plaintiff has been able to prove his adoption by first defendant and his' first wife?
24. The evidence on record shows that the plaintiff examined P.W.I, who happened to be the natural father of the plaintiff. P.W.I has stated in his evidence that the plaintiff is his natural son. He was not knowing first defendant and his wife earlier to the adoption. The 1st defendant through some middle persons had approached him with a request to give the plaintiff in adoption to him and his wife. P.W.I further stated in his evidence that he consulted his wife and other relations and agreed to give the plaintiff in adoption to the first defendant and his first wife. P.W.I further stated that the adoption ceremony took place in October 1961 at the house of first defendant at Martur. The function of giving the plaintiff in adoption by him and his wife and the function of taking the plaintiff in adoption by the first defendant and his first wife was performed. "Datta Homam" was also performed as per Hindu rites. Three years thereafter the first defendant and his wife performed "Upanayanam" of the plaintiff. The adoption deed was executed by the first defendant and it was registered in October 1965. He further stated that he was present at the time of execution of the adoption deed, which was executed by the first defendant. The adoption deed is filed on record as Ex.A-1.
25. The plaintiff examined P.W.2, who happened to be the retired District Registrar of Co-operative Societies. He stated in his evidence that he is originally a resident of Martur. He had a house and lands at Martur but he sold the same in the year 1972. It further appears from the evidence of P.W.2 that his elder brother by name [ENTITY] used to reside at Martur. He claims to have been knowing [ENTITY] i.e., the first defendant. He categorically stated in his evidence that the first defendant took the plaintiff in adoption as the first defendant was issueless and he has huge properties. Before taking the plaintiff in adoption, P.W.2 states that he was consulted by the first defendant. This witness further states that he has been knowing the natural parents of the plaintiff and therefore he had introduced the first defendant to the natural parents of the plaintiff. There were some negotiations and finally the natural father of the plaintiff agreed to give the plaintiff in adoption to the first defendant and his wife. He claims to have participated in the adoption ceremony. 'Datta Homam' was performed. The giving and taking ceremony was also performed. He categorically stated in his evidence that the first defendant and his wife sat on one side and the plaintiff's natural father and mother sat on the opposite side, then there was a giving and taking ceremony. After few years of adoption in the year 1964, the first defendant performed "Upanayanam" of the plaintiff in his house. He was also present at the time of "Upanayanam ceremony". He admits that no deed of adoption was prepared at the time of adoption ceremony of giving and taking the child in adoption. P.W.2 claims to be the brother by courtesy of first defendant. Thus, by looking to the evidence of P.W.2, the learned Counsel Mr. [ENTITY] appearing for the appellant herein submitted at the Bar that P.W.2 is an independent witness and there was no reason for him to give false evidence.
26. P.W.3 was examined on behalf of the plaintiff, who happened to be the Secretary of the L.M. Bank, Ongole. He claims to know P.W.2 as he happened to be his maternal uncle. He was also knowing first defendant. He also knows about the adoption of the plaintiff by the 1st defendant and his wife. He further stated in his evidence that after negotiations between the adoptive parents of the plaintiff and the natural parents of the plaintiff, both of them agreed to give and take the plaintiff in adoption. Thus, he supports the case of the plaintiff as far as the adoption is concerned.
27. P.W.4 was examined on behalf of the plaintiff. He also speaks about the adoption of the plaintiff by first defendant and his wife as the first defendant had no children. He had actively participated in arranging the adoption of the plaintiff. He claims to have gone to the house of the natural parents of the plaintiff along with his wife, first defendant and his wife at Ongole. He further stated in his evidence that after some negotiations and talks, the natural parents of the plaintiff agreed to give plaintiff in adoption to the first defendant and his wife. He also speaks about the adoption ceremony of giving and taking the child by the natural parents of the plaintiff to the first defendant and his wife. Thus, from the evidence of P.W.4 it can safely be stated that he supported the cause in all respects.
28. P.W.5 happened to be the close relation of first defendant. He speaks in his evidence that in the year 1961 the ceremony of adoption took place in the house of first defendant. He had attended the said ceremony. He also specifically states that the natural parents of the plaintiff were sitting on one side and the adoptive parents of the plaintiff were sitting on the other side. Actually giving and taking ceremony of adoption of the child was done in his presence. "Datta Homam" was also performed. He denied the suggestion that the wife of the first defendant was not willing to take the plaintiff in adoption. He also speaks about "Upanayanam" ceremony of the plaintiff was performed by the first defendant. Thus, the evidence of the above witness corroborates the evidence of other witnesses examined on behalf of the plaintiff.
29. The plaintiff himself has entered into the box as P.W.6. He has repeated the samething as it was stated by the other witnesses.
30. While commenting upon the aforesaid evidence led on behalf of the plaintiff, the learned Counsel Mr. [ENTITY] submitted at the Bar that the evidence on record would go to prove that the plaintiff was adopted by the first defendant and his wife with the free consent of the natural parents of the plaintiff and thus the plaintiff became the co-parcener with the first defendant.
31. While rebutting the aforesaid arguments of the learned Counsel for the appellant, the learned Counsel Mr. [ENTITY] appearing on behalf of the 6th defendant-respondent herein submitted at the Bar that the adoption of the plaintiff by first defendant and his adoptive mother is not proved. The learned Counsel Mr. [ENTITY] pointed out from the evidence of D.W.6 that the first wife of first defendant was not in favour of adopting the plaintiff. Therefore, it was submitted by the learned Counsel for the 6th defendant-respondent herein that the adoption must be held not proved.
32. Looking to the evidence as brought on record, this Court had no hesitation in holding that the adoption was duly proved. The oral evidence as brought on record sufficiently establish the factum of adoption. The Law never contemplates that the adoption deed must be executed in writing and registered. It is not a deed compulsorily registerable Under [SECTION] of the [ACT]. What is required to prove the valid adoption is the free consent of both the parents giving in adoption and free consent of both the parents in taking the child in adoption and actually the ceremony of giving and taking the child in adoption must be duly proved. In the present case, there is sufficient evidence on record to establish the factum of giving the child and taking the child in adoption.
33. One more factor would weigh in favour of the plaintiff to establish the factum of adoption that the first defendant and his first wife were issueless. Not only they were issueless but also they had huge properties. A Hindu mind would always think that after him there must be a linear male descendant to give [ENTITY]' to him after his death.
34. Considering the above facts as brought on record, this Court has no hesitation in holding that the adoption is duly proved.
35. The learned Counsel Mr. [ENTITY] appearing on behalf of the 6th defendant-respondent herein submitted at the Bar that the adoption deed Ex.A-1 was executed and registered on 29-10-1965. That fact itself would go to prove that the adoption was not done in the year 1961 as alleged by the plaintiff. The learned Counsel Mr. [ENTITY] further submitted at the bar that no photographs of adoption were produced on record to establish the factum of adoption. The learned Counsel Mr. [ENTITY] further submitted at the Bar that the adoption deed Ex.A-1 is signed by the first defendant. There are no signatures of both the parents in giving adoption and the signatures of both the parents taking in adoption of the child. This fact would destroy the story of the plaintiff that he was taken in adoption by the first defendant and his first wife.
36. I am not in agreement with the submissions made by the learned Counsel Mr. [ENTITY] for the reason that the oral evidence on record amply prove the factum of adoption. The evidence of independent witnesses examined on behalf of the plaintiff establish the fact of adoption. Therefore, their oral evidence will have to be given due weightage and respect. It is true that Ex.A-1 the adoption deed is signed by only the first defendant and not by his wife, this fact would not destroy the theory of adoption put forward by the plaintiff.
37. I have already stated in the foregoing paragraphs of my judgment that the adoption deed is not a condition precedent and it is also not compulsorily registerable document as required Under [SECTION] of the [ACT]. Even if Ex.A-1 is totally ignored, this Court has no hesitation in holding that the adoption of the plaintiff by first defendant and his first wife is duly proved.
38. The next fact which arises in this litigation is of the Will executed by first defendant in favour of the 6th defendant. The Will is produced on record by first defendant as Ex.B-16. By the Will dated 23-6-1973 the entire property was bequeathed by the first defendant in favour of 6th defendant. The learned Counsel Mr. [ENTITY] appearing on behalf of the appellant herein submitted at the Bar that the Will has to be ignored in toto for the reason that the Will comes into operation only after the death of the first defendant. It was also submitted by the learned Counsel for the appellant that the entire property cannot be bequeathed by the first defendant by ignoring the rights of the plaintiff, who was the adopted son of first defendant. In support of the aforesaid contention, the learned Counsel Mr. [ENTITY] appearing for the appellant relied upon a ruling reported in [PRECEDENT]. It is the judgment of the Division Bench of this Court in which it was held as follows:
"[SECTION] of the [ACT] provides for testamentary succession saying that a Hindu may dispose of his property by way of testamentary disposition and explanation to the section clarifies that the interest of male Hindu and [ENTITY] coparcenary property is, notwithstanding anything contained in the Act or any other law for time being in force, to be deemed to be property capable of being disposed of by him within the meaning of the section. From this, submission is advanced that as specific provision was made in [SECTION] enabling a male Hindu coparcenary to dispose of the property by testamentary disposition, the logical conclusion to be reached is that a bar operates in respect of all other types of disposition of property by Hindu male coparcener including gifts. It cannot be accepted as no canon of interpretation of statutes lends support to the proposition advanced. The effect of [SECTION] would only affect any existing law so far as specific provision to the contrary is made in the Act itself. There is no provision in the [ACT] prohibiting gift by coparcener of his undivided interest in the coparcenary whereas such right inheres in him under the existing Hindu Law. Such right will continue unabated as it is not prescribed by any provision of the statute. The effect of [SECTION] of the [ACT] cannot be stretched in the manner it is sought to> to cover also matters which were not dealt with by that section."
Before discussing the validity of the Will, this Court would like to discuss as to whether the 6th defendant was legally married to the first defendant and its effect?
39. The learned Counsel Mr. [ENTITY] appearing on behalf of the appellant herein pointed out the evidence of D.W.6, who claims to be the wife of first defendant and submitted that the marriage of the 6th defendant with the first defendant is void ab initio. It was submitted from the evidence of D.W.6 that D.W.6 was already married to a person known as [ENTITY] and because of some disputes, the 6th defendant started residing separately and started prosecuting her studies. Unless it is shown by a positive evidence on record that the marriage between the 6th defendant and Mr. [ENTITY] was dissolved by a decree of Court, the marriage of 6th defendant with the first defendant is null and void and therefore it was submitted by the learned Counsel Mr. [ENTITY] that the so-called Settlement Deed cannot achieve any importance. Moreover, the first defendant had no right to settle any property in favour of the 6th defendant.
40. While rebutting the aforesaid arguments of Mr. [ENTITY] learned Counsel for the appellant, the learned Counsel Mr. [ENTITY] appearing on behalf of the 6th defendant-respondent herein submitted at the Bar that the evidence of D.W.6 shows that all the marriage ceremonies as required under Hindu Law were not completed. Before the completion of the marriage ceremonies the greedy bridegroom started demanding dowry in cash and therefore the further ceremonies were not completed so as to say that the marriage was solemnised. The 6th defendant had to withdraw herself from the marriage function and thus she had to lead a miserable life.
41. The learned Counsel Mr. [ENTITY] further submitted that once it is held that the marriage of 6th defendant with Mr. [ENTITY] was not validly performed, then there was no impediment for the 6th defendant to get married with the first defendant.
42. By looking to the entire evidence of D.W.6 on record, this Court is convinced that the marriage of 6th defendant with Mr. [ENTITY] was not completed in its true sense. The marriage was broken before it was completed. No "Saptapathi ceremony" was performed and both the parties withdrew themselves from the marriage function. It was because of Mr. [ENTITY] was greedy for money.
43. It is true that the 6th defendant had one or two places was styling herself as the wife of Mr. [ENTITY] only because she mentally could not reconcile that her marriage with Mr. [ENTITY] was broken. But on facts it is true that the 6th defendant was never married with Mr. [ENTITY] and therefore she continues to be spinster before she was married to the first defendant. Therefore, this Court is not in agreement with the submission of Mr. [ENTITY] that there was no valid marriage between the 6th defendant and the first defendant. This Court is also not in agreement with the finding of the trial Court that there was no valid marriage between the first defendant and the 6th defendant.
44. The last point arises for consideration of this Court as to whether the first defendant had any right to settle the property in favour of the 6th defendant by executing the Settlement Deed Ex.B-9 in her favour ignoring the rights of the plaintiff.
45. The learned Counsel Mr. [ENTITY] appearing on behalf of the appellant herein relied upon a ruling reported in [PRECEDENT]., . It was held by their Lordships as follows:
"A gift by a coparcener of his undivided interest in the coparcenary property is void. The reason as to why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift is that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigour of this rule against alienation by gift has been to some extent relaxed by the [ACT]. [SECTION] of the Act permits the disposition by way of will of a male Hindu in a [ENTITY] Coparcenary Property."
46. The learned Counsel Mr. [ENTITY] also relied upon a ruling reported in [PRECEDENT]., wherein their Lordships were pleased to hold as follows:
"Hindu Law - [ENTITY] - Joint family - Madras School - Father manager - Alienation - Powers in respect of joint family property in favour of concubine - Applicability of [SECTION], [ACT] and [SECTION] [ACT].
One V a Karta of a joint family consisting of himself and his four sons by two deeds purporting to be sale deeds, transferred certain properties belonging to the joint family to his permanent concubine. Subsequently there was a disruption of the joint family and a severance of the joint status. Future illicit cohabitation was not the object of the consideration for the transfers.
Held, that the services of the concubine were given in exchange for promise of V under which she obtained similar services. In lieu of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated Under [SECTION] of the [ACT] as a subsisting consideration for his subsequent promise to transfer the properties to her. The past consideration was the motive and not the consideration for the transfers. The transfers were without consideration and were gifts. The gifts were not hit by [SECTION] of the [ACT] by reasons of the fact that they were motivated by a desire to compensate the concubine for her past services.
V was free to make a gift of his own property to his concubine. But the properties gifted were coparcenery properties and he had no power to make a gift of even his undivided interest and hence they were void. The invalid gifts were not validated by the subsequent disruption of the joint family."
47. While rebutting the aforesaid arguments of Mr. [ENTITY], the learned Counsel Mr. [ENTITY] appearing on behalf of the 6th defendant-respondent herein relied upon a ruling reported in [PRECEDENT] wherein it was held by their Lordships as follows:
"Hindu Law - Partition - Severance of joint status takes place from date on which communication of intention to become divided is sent and not from date on which communication is received by coparceners.;
A member of a joint Hindu family can become divided by a declaration of his intention to become so divided. The severance of status takes place from the date on which the communication of intention to separate was sent and not when the communication has been actually received by the coparceners. The severance of status relates back to the date when the communication was sent and the date of receipt of communication by the coparceners is not material."
The learned Counsel for the 6th defendant-respondent herein also relied upon a ruling reported in [PRECEDENT]., wherein their Lordships were pleased to hold as follows:
"In a case of a severance in status brought about by conduct - and it has been repeatedly recognised by the Privy Council that it can be so brought about - there is no question of a notice or communication of the intention to divide. The texts quoted by me regard the unilateral decision or the individual volition and desire of a member of the joint family as the crucial severing factor, the indication, manifestation, or publication of such intention being merely evidentiary. In other words, notice or communication of an individual's intention to divide, to the other members of the family is neither a condition nor a pre-requisite of the severance in status, but is only of evidentiary value and importance. Partition does not create title in the coparcener or give him a right to his share. It only enables him to obtain what is his own already. Notice of an intention to become divided is not the root of title and is not like a notice to quit which is a condition precedent to the accrual of the right or an integral part of the cause of action itself. The other members of the family have no voice in the matter. They cannot veto the declaration of the member. They cannot resist his determination. If you impose a condition that it is only if all the other members of the family are duly notified of the intention of an individual member to divide, there could be a severance in status so far as he is concerned, you are imposing a clog or fetter on the right of the individual member. You are abrogating "pro tanto" the "unilaterality" of the doctrine of unilateral declaration. At the same time it can easily be realised that it is of vital interest to the other members of the family to be sure of their position vis-a-vis the dividing or outgoing member. Therefore, it is that the declaration of intention to separate must be clear and unequivocal, expressed in such a form that it would not be open to the separating coparcener afterwards to say that he still continues to be a member of the joint family. It is for this reason that an outward manifestation or clear indication of an intention to divide is also required. Suppose a man registers a document declaring that he is a divided member or publishes a notice to that effect in the newspaper. Is it to be said that he has not become divided in status simply because his coparceners have not been individually notified of his intention? The only reasonable rule that can be deduced from the texts and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested or published in such a manner as is appropriate in the circumstances of the case. One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family."
48. Considering the above rulings and the latest ruling of the Supreme Court, this Court has no hesitation in holding that the so-called Settlement Deed Ex.B-9 is not a valid document. It is true that the plaintiff-appellant herein had filed a suit against the first defendant for partition and separate possession of his share meaning thereby he wanted to sever his relations from the coparcenary, but it does not mean that the coparcenary property was divided by metes and bounds. When the property held by the coparceners jointly, no coparcener can claim that a particular piece of land or the property exclusively belongs to him. The coparcener can gift the property only to the extent of his share. He can also will away the property to the extent of his share in the coparcenary property but no coparcener can gift a specified item of the property. In the present state of facts, the suit for partition was still in progress; this Court has held in the earlier paragraphs of the judgment that the plaintiff, who is the adopted son of first defendant, became the coparcener with the first defendant. The coparcenary family consists of only two members. Both of them i.e., the plaintiff and the first defendant, have equal shares in the property. But till the time the coparcenary property is divided by metes and bounds, neither the plaintiff nor the defendant No. 1 could claim that a specified item of property exclusively belongs to him though the first defendant settled specified property in favour of 6th defendant less than his share.
49. Taking into consideration the above position of law, this Court holds that the Settlement Deed Ex.B-9 is inoperative in law. Therefore, it can be ignored in toto.
50. As far as the Will Ex.B-16 executed by the first defendant is concerned, this Court holds that Ex.B-16 Will has also to be ignored in toto for the reason that the first defendant had bequeathed the entire property to the sixth defendant-respondent herein.
51. To summarise the entire discussion, this Court holds that the plaintiff-appellant was validly adopted by the first defendant and his 1st wife. The plaintiff-appellant became the coparcener with the first defendant having undivisible half share in the property. Ex.B-16 Will is inoperative in law for the reason that the testator had bequeathed the entire property in favour of 6th defendant without any legal rights. It is further held by this Court that the marriage between the first defendant and the 6th defendant is a valid marriage. Then the Settlement Deed Ex.B-9 is inoperative in law as the Settlement Deed was executed by the first defendant in favour of sixth defendant by ignoring the rights of the plaintiff and he had executed the Settlement Deed in respect of the specified item of property without any legal right.
52. Thus, considering the entire evidence and the conclusion arrived at, this Court holds that the plaintiff-appellant is entitled to half share in 'A' schedule properties. The remaining half share would devolve on the plaintiff and the 6th defendant by succession and each one of them will get equal share in the remaining property which would have been allotted to the first defendant if he would have been alive.
53. As far as the other properties mentioned in the plaint schedules are concerned, there is no evidence on record to prove that the coparcenary of plaintiff and first defendant held such property. Therefore, the claim of the plaintiff in respect of other properties are rejected.
54. As far as the other suits are concerned, there is ample evidence on record that the first defendant though he had Sufficient property, he had borrowed certain sums from the plaintiffs in other suits. Therefore, the judgment and decrees passed by the trial Court in those suits stand confirmed.
55. In effect, [CASE NUMBER] arising out of [CASE NUMBER] is decreed to the extent mentioned above. The transfer [CASE NUMBER] arising out of [CASE NUMBER] stand dismissed. No costs.