*HON’BLE SRI JUSTICE R.KANTHA RAO + SECOND APPEAL Nos.59 AND 831 of 2004 % Date: 06-09-2011 S.A. No.59 of 2004 BETWEEN: #Yerramalli Seshagiri and another …Appellants And $Yerramilli Subba Rao and others Respondents S.A. No.831 of 2004 BETWEEN: #Yerramalli Subba Rao …Appellants And $Yerramilli Seshagiri and others Respondents ! Counsel for appellants: Sri T.S.Anand ^ Counsel for respondents: Sri V.L.N.G.K.Murthy < GIST: >HEAD NOTE: ? Cases referred: HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL Nos.59 AND 831 of 2004 DATED: 06-09-2011 S.A. No.59 of 2004 BETWEEN: Yerramalli Seshagiri and another …Appellants And Yerramilli Subba Rao and others Respondents S.A. No.831 of 2004 BETWEEN: Yerramalli Subba Rao …Appellants And Yerramilli Seshagiri and others Respondents HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.59 AND 831 of 2004 COMMON JUDGMENT: 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. 2. 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. 3. 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 4. For the sake of convenience, the parties will be referred as “the plaintiffs and the defendants.” 5. The ﬁrst plaintiﬀ ﬁled the suit for partition of her half share in the schedule mentioned properties 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. 6. The brief averments of the plaint are as follows: 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. 8th 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 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. 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 pre- deceased 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 8th defendant as the heirs of his father Satyanarayana Murthy became jointly entitled to it. Hence they are entitled to 1/9th share in the undivided half share of the plaint schedule properties. 7. 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 to 11 are in actual possession of Ac.1.50 cents. He is having only 1/9th 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 13th 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 13th 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. 8. 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 14th 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 14th defendant was impleaded as per orders dated 07.04.1998 in I.A.No.281 of 1998. 9. In the course of his written statement, the ﬁrst defendant contended as follows: 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. 10. 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. 11. 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 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. 12. 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 9th defendant. He also leased out item 2(a) and (b) properties comprising Ac.1.50 cents to 10th 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. 13. 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 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. 14. The 5th 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. 15. The 14th 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 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. 16. 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. 17. 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 14th defendant further stated that he also adopts the written statement ﬁled by the ﬁrst defendant on other aspects. 18. Accordingly, the plaint schedule properties are the self-acquired properties of late Atukuri Veera Venkata 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 8th 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. 19. 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. 20. The plaintiﬀs based their case on a registered 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. 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. 22. 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 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. 22. 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 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. 23. 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. 24. However both the Courts below referring to the 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. 25. 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. 26. 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. 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? 2) 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. 3) 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? 4) 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. 5) 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? 27. 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 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: “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.” 28. 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. 29. 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 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. 30. On the crucial question as to the construction and