Case: Addagada Raghavamma And Anr Vs. Addagada Chenchamma And Anr

The following genealogy will be useful in appreciating the facts and the contentions of the parties.It will be seen from genealogy that Veeranna had two wives and that Chimpirayya and Pitchayya were his sons by the first wife and Peda Punnayya and China Punnayyas were his sons by the second wife. Veeranna died in the year 1906 and his second son Pitchayya had predeceased him onleaving his widow Raghavamma. It is alleged that sometime before his death, Pitchayya took Venkayya, the son of his brother Chimprirayya in adoption; and it is also alleged that in or about the year 1895, there was a partition of the joint family properties between Veranna and his four sons, Chimpirayya, Pitchayya, Peda Punnayya and China Punnayya, Veeranna taking only 4 acres of land and the rest of the property being divided between the four sons by metes and bounds. Venkayya died on May 24, 1938, leaving behind a son Subbarao. Chimpirayya died on May 5, 1945 having executed a will dated January 14, 1945 whereunder he gave his properties in equal shares to Subbarao and Kamalamma, daughter of his predeceased daughter Saraswatamma; thereunder he also directed Raghavamma, the widow of his brother Pitchayya, to take possession of the entire property belonging to him, to manage the same, to spend the income therefrom at her discretion and to hand over the property to his two grandchildren after they attained majority and if either or both of them died before attaining majority, his or her share or the entire property, as the case may be would go to Raghavamma. The point to be noticed is that hisChenchamma was excluded from management as well as from inheritance after the death of Chimpirayya. But Raghavamma allowed Chenchamma to manage the entire property and she accordingly came into possession of the entire property after the death of Chimpirayya. Subbarao died of July 28, 1949. Raghavamma filed a suit on October 12, 1950 in the Court of the Subordinate Judge, Bapatla, for possession of the plaint scheduled properties; and to that suit, Chenchamma was made the first defendant; Kamalamma the second defendant; and China Punnayya, the second son of Veeramma by his second wife, the third defendant. The plaint consisted of A, B, C, D,and E Schedules which are alleged to be the properties of Chimpirayya. Raghavamma claimed possession of A B and C Scheduled properties from the 1st defendant, for partition and delivery of half share in the properties covered by plaintschedule D andwhich are alleged to belong to her and the 3rd defendant in common and a fourth share in the property covered byE which are alleged to belong to her and the 1st and 3rd defendants in common. As Kamalamma was a minor on the date of the suit, Raghavamma claimed possession of the said properties under the will half in her own right in respect of Subbaraos share, as he died before attaining majority and the other half in the right of Kamalamma, as by then she had not attained majority, she was entitled to manage her share till she attained majority.2. The first defendant denied that Venkayya was given in adoption to Pitchayya or that there was a partition in the family of Veeranna in the manner claimed by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and, therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. She did not admit that Chimpirayya executed the Will in a sound and disposing frame of mind. She also did not admit the correctness of the schedules attached to the plaint. The second defendant filed a statement supporting the plaintiff. The third defendant filed a statement denying the allegations in the plaint and disputing the correctness of the extent of some of the items in the plaint schedules. He also averred that some of the items belonged to him exclusively and that Chimpirayya had no right to the same.3. On the pleadings various issues were raised and the main issues, with which we are now concerned, are issues 1 and 2, and they are : (1) whether the adoption of Venkayya was true and valid; and (2) whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff. The learned Subordinate Judge, after considering the entire oral and documentary evidence in the case, came to the conclusion that the plaintiff had not established the factum of adoption of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other ; and in the result he dismissed the suit with costs.4. On appeal, a Division Bench of the Andhra High Court reviewed the entire evidence over again and affirmed the findings of the learned subordinate Judge on both the issues. Before the learned Judges another point was raised, namely, that the recitals in the Will disclose a clear and unambiguous declaration of the intention of Chimpirayya to divide, that the said declaration constituted a severance in status enabling him to execute a Will. The learned Judges rejected that plea on two grounds, namely, (1) that the Will did not contain any such declaration : and (2) that, if it did, the plaintiff should have claimed a division of the entire family property, that is, not only the property claimed by Chimpirayya but also the property alleged to have been given to Pitchayya and that the suit as framed would not be maintainable. In the result the appeal was dismissed with costs. In the result the appeal was dismissed with costs. The present appeal has been preferred by the plaintiff by certificate against the said judgment.

Reasoning:
9. Under Art. 133 of the Constitution the certificate issued by the High Court in the manner prescribed therein is afor the maintainability of an appeal to the Supreme Court. But the terms of the certificate do not circumscribe the scope of the appeal that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a Court of appeal, to consider the correctness of the decision appealed against from every standpoint, whether on question of fact or law. A successful party no doubt can question the maintainability of the appeal on the ground that the certificate was issued by the High Court in contravention of the provisions of Art. 133 of the Constitution, but once the certificate was good, the provisions of Art. 133 did not confine the scope of the appeal to the certificate. We, therefore, reject this preliminary objection.Article 133 of the Constitution does not in any way limit the scope of an appeal, provided a proper and valid certificate is issued by the High Court thereunder. This Court has undoubtedly the power to review the concurrent findings of fact arrived at by the lower Courts in appropriate cases. But it has been apractice of the Privy Council not to interfere with such findings based upon relevant evidence, except underThe reason for the practice is stated to be that when facts have been fairly tried by two Courts and the same conclusion has been reached by both, it is not in the public interest that the facts should be again examined by the ultimate Court of appeal. Whatever may be the reason for the rule, the practice has become fairly crystallized and this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done." It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. We have heard learned counsel on merits and we do not think it is one of those exceptional cases where we should depart from the salutary practice adopted by thisargument in effect and substance means that the Courts below have not given due weight to particular pieces ofevidence. There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgment, of the lower Courts, therefore, only pertains to the domain of appreciation of evidence. We shall, therefore, broadly consider the evidence not for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usualthis state of evidence when both the Courts found, on a careful consideration of oral and documentary evidence and the probabilities arising therefrom that the appellant on whom the burden of proof lay to establish that Venkayya was adopted to Pitchayya has failed to discharge it, we cannot say that the finding was vitiated by such errors that we should review the entire evidence over again and come to a conclusion of our own. We, therefore, accept the concurrent finding of that fact that there was no adoption.In this state of evidence it is not possible to say that there had been a consistent pattern of conduct from which a Court should draw the inference that the adoption must have takensaid suggestions made by learned counsel on both sides are only based on surmises and they cannot be made the basis for a Courts conclusion.Inthis state of evidence when both the Courts found, on a careful consideration of oral and documentary evidence and the probabilities arising therefrom that the appellant on whom the burden of proof lay to establish that Venkayya was adopted to Pitchayya has failed to discharge it, we cannot say that the finding was vitiated by such errors that we should review the entire evidence over again and come to a conclusion of our own. We, therefore, accept the concurrent finding of that fact that there was nopartition is alleged to have taken place in or about the year 1895; but no partition deed was executed to evidence the same. The burden is certainly on the appellant who sets up partition to prove the said fact. P.W. 1, though she says that Veeranna was alive when his sons effected the partition, admits that she was not present at the time of partition, but only heard about it, P. W. 2, the appellant, deposes that her husband and his brothers effected partition after she went to live with him; she adds that in that partition herlaw took about 4 acres of land described as Bangala Chenu subjects to the condition that after his death it should be taken by his four sons, that at the time of partition they drew up partition lists and recited that each should enjoy what was allotted to him and that the lists were written by one Manchella Narasinhayya; she also admits that the lists are in existence, but she has not taken any steps to have them produced in Court. She says that each of the brothers got pattas according to the partition, and that the pattas got for Pitchayyas share are in his house; yet she does not produce them. She says that she paid kist for the lands allotted to Pitchayyas share and obtained receipts; but the receipts are not filed. She admits that she has the account books; but they have not been filed in Court. On her own showing there is reliable evidence, such as accounts, Pattas, receipts, partition lists and that they are available; but they are not placed before the Court. Her interested evidence cannot obviously be acted upon when all the relevant evidence has beenevidence does not contain any admission that there was a partition inter se between the four brothers; indeed it only supports the case that there was partition between the children of Veeranna by his two wives. The division in four plots in respect of certain lands was only for an equitable distribution of the said lands between the sons of two wives. D. W. 10 in his evidence says that he does not know in what year the partition took place; that it went on for two months; that some of the lands were divided into four plots. His evidence is also consistent with the evidence of D. W. 8. There is no admission by defendants witnesses that the division was between the four brothers. The oral evidence, therefore, does not support the case of the appellant that there was a division inter se between Chimpirayya and Pitchayya.20. Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant. Even the documentary evidence filed in the case does not help theseries of documents support the case that there was no partition inter se between Chimpirayya and Pitchayya. So too, another land obtained by Veeranna under an oral sale in 1886 was formally sold by a registered sale in favour of Chimpirayya and Pannayya under Ex.in 1911. If Pitchayya had a share, Venkayya should have been one of the vendees. Exs. B 67 and B 68 are the assessment orders of the year 1933 and Chimpirayya was assessed as representing a Hindu undivided family. At the time of assessment if Venkayya was not a member of the Hindu joint family, there was no other male member in the family. The assessment could only be explained on the basis that Venkayya and Chimpirayya were members of a Joint Hindu family. Both the Courts, on the basis of the said evidence and other evidence, came to the conclusion that it has not been established that in the partition of 1895 there was a division inter se between Chimpirayya andthere is a partition in a Hindu joint family is, therefore, a question of fact; notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. On the evidence adduced in this case, both the Courts below found that there was no partition between Chimpirayya and Pitchayya as alleged by the appellant. The finding is one of fact.We have broadly considered the evidence only for the purpose of ascertaining whether the said concurrent finding of fact is supported by evidence or whether it is in any way vitiated by errors of law. We find that there is ample evidence for the finding and it is not vitiated by any error of law.It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty. Omitting the Will, the earlier documents filed in the case do not disclose any such clear intention. We have already held that there was no partition between Chimpirayya and Pitchayya. The register of changes on which reliance is placed does not indicate any such intention. The statement of Chimpirayya that his younger brothers son is a sharer in some lands and, therefore, his name should be included in the register, does not ex facie or by necessary implication indicate his unambiguous declaration to get divided in status from him. The conflicting descriptions in various documents introduce ambiguity rather then clarity in the matter of any such declaration of intention. Be it as it may, we cannot, therefore, hold that there is any such clear and unambiguous declaration of intention made by Chimpirayya to divide himself frontregret our inability to accept this view. Firstly, because, as we have pointed out earlier, the law has been well settled by the decisions of the Judicial Committee that the manifested intention should be made known to the other members of the family affected thereby; secondly, because there would be anomalies on the acceptation of either of the views.Thirdly, it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby.We agree with the learned Judge in so far as he held that there should be an intimation, indication or expression of the intention to become divided and that what form that manifestation should take would depend upon the circumstances of each case. But if the learned Judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression "declaration" that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.32. It is, therefore, clear that Hindu Law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach that, such a declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation.33. This view does not finally solve the problem. There is yet anotherquestions posed raise difficult problems in a fast changing society. What was adequate in a village polity when the doctrine was conceived and evolved can no longer meet the demands of a modern society. Difficult questions, such as the mode of service and its sufficiency, whether a service on a manager would be enough, whether service on the major members or a substantial body of them would suffice, whether notice should go to each one of them, how to give notice to minor members of the family, may arise for consideration. But, we need not express our opinion on the said questions, as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death ofacceptance of the said principle would inevitably lead to confusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognized by Hindu Law as developed by Courts and applied in that branch of the law pertaining to adoption. There are two ingredients of a declaration of a members intention to separate. One is the expression of the intention and the other is brining that expression to the knowledge of the person or person affected. When once that knowledge is broughtdepends upon the facts of eachrelates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and commonsense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable then to suggest that the doctrine should not affect vested rights? But imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved.35. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayyaon hesaid that at the time of the execution of the Will the firsts inside thehouse. This evidence is worthless. The fact that sheuse cannot in itself impute to her the knowledge of the contents of the Will or even the fact that the will was registered that day. D. W. 4 is the first respondent hereself. She says in her evidence that she did not know whether thecame to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is not possible to hold that the first respondent as guardian of Subbararo, had knowledge of the contents of the Will.37. In this view, it is not necessary to consider the further question whether the Will coptained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the member of the joint family.