Case: Gummalapura Taggina Matadakotturuswami Vs. Setra Veeravva And Others

1. This appeal is before us on a certificate granted by the High Court as according to that Court a substantial question of law arose in the case which was stated by it tothe adoption of the second defendant invalid, as the approval or consent of the five trustees mentioned in paragraph 14 of the will of Kari Veemppa, Ext. P-2 (a) was not obtained; and is the authority to adopt at an end if any one of those five persons did not accept the trusteeship or died before the adoption or refused to give their approval." In view of certain matters about to stated, the question of law as propounded by the High Court does not require to be considered.Kari Veerappa was the last male owner of the estate mentioned in his will Ext. P-2 (a), which he executed on October 10, 1920. Under this will he authorized his wife Setra Veeravva, first defendant to adopt a son for the purpose of continuation of his family as he had no issue. The authority to adopt was in the followinghave given her permission to adopt as many times as would be necessary should the previous adoption be unsuccessful . But Veeravva must a adopt only a boy approved by the respectable persons appointed by me in paragraph 14; should Veeravva die before making any adoption, the persons becoming trustees should arrange for the adoption of .a boy for the continuation of my family in accordance with my kulachara (familythis stage it is unnecessary to refer to the other provisions of the will of Kari Veerappa. This gentleman died on October 23, 1920. After his death, his widow made two attempts to adopt a son in accordance with his will. The first attempt was in 1939 which did not accomplish the purpose of the will as the person alleged to have been adopted died. The validity of this adoption was being questioned, but as the boy said to have been adopted had died, efforts to dispute the adoption did not materialise. Veeravva thereafter, on October 11, 1942, adopted second defendant, Sesalvada Kotra Basayya. Two documents in this connection are on the record. The first document is Exbt. D-25 dated the 18th of September, 1942 which was a registered agreement to adopt the second defendant. The second document is also a registered document; which is described as the deed of adoption and is dated June 23,This clearly states that on October 11, 1942 Veeravva had adopted the 2nd defendant. Reference was also made in this document to the agreement of September18,The appellant claiming to be the nearest reversioner of Kari Veerappa filed the present suit asking for a declaration that the, adoption of the second defendant by Veeravva was invalid and not binding on the appellant or the other reversioners to the estate of the late Kari Veerappa.

Reasoning: It seems to us that if were permissible to decide the question of Veeravvas possession on only the affidavits before us, we would find no difficulty in holding that she was in possession of her husbands estate when the Act came into force. It is to be remembered, however, that this question has arisen now and the appellant has had no real opportunity to establish his assertion that the second defendant is in actual possession and not Veeravva. It is necessary therefore to consider the true scope and effect of the provisions of sub-s. (1) of S. 14 of the Act. If the words "possessed by a female Hindu" occurring therein refer only to actual physical possession, it may be necessary to call for a finding on the question of such possession; if, on the contrary, these words have a wide connotation and include constructive possession or possession in law, the preliminary objection can be determined on the footing that Veeravva was in such possession at the relevant time.In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" in S. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a care the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of S. 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in ones hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went.It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in ones hand orour opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted.In the present case if the adoption was invalid, the full owner of veerappas estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.12. It was suggested that according to the will of Veerappa, Exbt. P-2(a) in the properties mentioned in para. 4 of that will Veeravva got only a restricted estate. The provisions of para. 4 of the will, however, make it clear that they would come into force only if the trustees mentioned in the will and Veeravva should disagree. No material was shown to us that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4 were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid, the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions of para. 4 are of no assistance to the appellant in applying the provisions of sub-s. (2) of S. 14 of the Act. Reference was also made to the contents of the agreement, Exbt. D-25, dated September 18, 1942 in this connection. It is clear, however, that by this agreement no estate was conferred on Veeravva and she did not thereby acquire any estate much less a restricted estate. All the document stated was that there was an agreement between the guardians of the boy to adopted and Veeravva that even if the boy is adopted, Veeravva would remain it possession and enjoyment of her husbands estate during her life time. In our opinion, there is no material on the record by which it can reasonably be said that the provisions of subs. (2) of S, l4 of the Act applied to the present case.13. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by her, during her life time. Reference was made to S. 42 of the Specific Relief Act, Illustration (f).In our opinion, this is of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widows estate and has no reference to a full owner. The right of a reversioner as one of the heirs under S. 42, Specific Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as any against a full owner, the reversioner has no such right.In our opinion, under the Act Veeravva becoming a full owner of her husbands estate, the suit could not succeed and the appeal must accordingly fail.