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Judgment
Subba Rao, C.J.—This is a Plaintiff''s appeal against the decree and judgment of the Court of the Subordinate Judge of Rapatla, setting aside the decree of the learned District MunsiJ Ongole, in O. S. No. 41 of 1947, a suit filed by the Appellant for partition of the plaint schedule properly into two equal shares by metes and bounds and for recovery of one such share.
The following genealogy may be useful for appreciating the contentions of the parties:
__________________________________________ | | Gaddam Yanadi. Gaddam Married Bhushavya. Chencharnma. | __________________________________________________ | | | | Subbamma Pedara Chinna Rangamma Wife of -gaiuaia. Rangamma Chinipirayya. | __________________ | | Bhushayya. Venkatasubbamma. (1st deft.) (Daughter).
The case of the Plaintiff is that the plaint schedule properties were originally owned by Yanadi, that Chinipirayya was his illatom son-in-law, that, after the death of Chinipirayya, the 1st Defendant . Bhusbayya inherited them as ancestral property, and that the plaintili being the only son and a member of the joint Hindu family along with the 1st Defendant, is entitled to a share in the same; Defendants 2 to 8 are the alienees of the suit items.
The Defendants denied that Chinipirayya was an illatom son-in-law of Yanadi. They stated that the suit items were the stridhana properties of Sub-bamma, and that, after her death, they passed on to her daughter, the 3rd Defendant.
The learned District Munsif held that items 1 to 4 of the plaint schedule were the properties of Yanadi and that the illatom adoption set up by the Plaintiff was true. In regard to item 4, he held that it was the property of Chimpirayya. In the result, he gave a preliminary decree for partition declaring half right of the Plaintiff in items 2 to 4 of the ''A'' Schedule and Acres 1-13 cents in item 1. On appeal, the learned Subordinate Judge held that, it had not been established that Chimpirayya was the illatom son-in-law of Yanadi and of that ground, disallowed the claim of the Plaintiff. Hence the Second Appeal,
The main question in the Second Appeal is whether Chinipirayya was the illatom son-in-law of Yanadi. If he was the illatom son-in-law, his property would devolve on the 1st Defendant as ancestral property, in which case the Plaintiff would .be entitled to a half share. Illatom is the affiliation of a son-in-law in consideration of assistance in the management of the family property. A specific agreement to that effect is necessary. But, in the case of ancient adoptions, it is permissible to infer such an agreement, from long course of conduct and circumstantial evidence. In the ultimate analysis, it is a question of fact, whether the factum of adoption is established or not in the circumstances of each case.
The facts found by the learned Subordinate Judge may be summarised:
(i) There is no definite evidence of any specific agreement between Yanadi and Chimpirayya;
(ii) There is also no evidence that Chimpirayya was brought to Yanadi''s house by Yanadi;
(iii) Chimpirayya belonged to Dyvalaravor and he lived along with the members of the family in Ya-nadi''s house at Thurpu Nayudupalem during his wife''s lifetime and also thereafter;
After the death of Bhushayya, there was some difference between a reversioner of Bhushayya one Narasimham on the one hand and Chenchamma and Subbamma on the oilier, and that di.spute was settled by execution of two documents Exs. B-13 and B-14 dated 27-9-1917, whereundcr Narasimham took some property and relinquished the rest in favour of Chenchamma. To those disputes or settlement of the disputes, Chimpirayya was not a party.
(v) Exhibits B-4 to'' B-6, the dittam registers of Faslis 1322, 1328 and 1318 show that Patta No. 33 stood in the name of Chenchamma and it was transferred in her name from that of Bhushayya and alter the death of Chenchamma, the patta was registered in the name of Subbamma.
On tiiose facts, the learned Judges held that the mere fact that Chimpirayya was living in the house of his father-in-law and assisting the members of his family in the management of the properties is . not sufficient to draw an inference that Chimpirayya was the illatom son-in-law of Yanadi. The finding is an inference of fact and it is not permissible to interfere in Second Appeal.
But the learned Counsel for the Appellant argued that the finding is vitiated by the fact that the learned Subordinate Judge has not considered Exs. A-l to A-5, A-6, A-7 and the evidence of D. W. 2. Exs. A-l to A-5 are the entries in the ehitlas kept lor the village for Faslis 1329, 1324, 1351, 1353 and 1345 in respect of Patta No. s. 33 and 30. Except Ex. A-l which is of the year 1919, the rest of the entries are of recent years.
The learned Subordinate Judge held that the said entries have not been proved, and even if they were evidence, diey only show that the cist was paid by Chimpirayya, which would not advance his case. The learned Counsel for the Appellant contended that the said items were evidence u/s 35 ol the Evidence Act, whereundcr an entry in any Public or other Official book, register or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. It is urged that Ex. A-l was an Official book kept by the Karnam who was a public servant under the rules framed under the Madras Hereditary Village Offices Act.
Particular reference was made to II. G fix) and the schedule of the accounts maintained by the Kar-nams in the Standing Orders of the Board of Revenue. But this argument was not advanced m cither of the Courts below. The argument advanced in (he Courts below was that the document was admissible u/s 90 of the Evidence Act. It was also argued that the Venkatagiri Estate, in which the village in question is situated, is one formed or recognised by a Regulation of 1802, that it is a statutory body and that as the register was maintained by the said, Estate, it is a public document. If the present contention was relied upon, it was necessary to prove that the, Karnam maintained the accounts, whereas P.W. H admitted that he docs not know who made the entries.
In these circumstances, it is not possible to accede to the new contention, whose acceptance depends upon an elucidation of further facts. Further, Exs. B-4, B-5 and B-6 are of an earlier period, which indicate that the patta was registered in the name of Chenchamma, whereas Exs. A-l to A-5 were of later origin. Though the name of . Chimpirayya is shown under the heading of pattadar in Exs. A-l to A-5, they do not conclusively establish that the patta stood in his name. It may be as the learned Subordinate Judge opined, that Chimpirayya, being the son-in-law of Yanadi, was paying cist on behalf of Chenchamma and his wife.
Exs. A-6 and A-7 are not of much evidentiary value. Ex. A-6 is of the year 1936 and Ex. A-7 is of the year 1940. These documents which are now questioned were executed by the first Defendant. Under the said documents, the first Defendant Bhushayya sold Yanadi''s properties. The fact that Bhushayya sold those properties as his own does not establish that Chimpirayya was taken in adoption by Yanadi. After the death of his mother, presumably he treated the property as his own and sold them. Nor does the evidence of D. W. 2 advance the case of the Plaintiff. He purchased an item of property from Bhushayya undeo Ex. A-6. He does not say in his evidence that Chimpirayya was taken in adoption by Yanadi, nor does he speak to any fact which'' supports that conclusion. It will, therefore, be seen from the aforesaid discussion that the learned Judge has considered the entire evidence and had come to the conclusion which he did.
The defects pointed out, even if true, are not .sufficiently weighty to tilt the balance in favour of the Appellant. There are no grounds for interfering with the finding of the learned Judge.
Even so, it is contended that the learned Subordinate Judge should have given a decree to the Plaintiff on the finding that the properties are the stridbanam properties of Chenchamma. The argument is that, as some of the items were found to be Chenchamnia''s stridbanam properties, after the death of Subbamma, the 1st Defendant is Chenchamma''s atridhanam heir and the Plaintiff got a right by birth in, the said items, which devolved on the 1st Defendant.
In support of this contention, reliance is placed upon the judgment of the Judicial Committee in Shco Shankar Lai v. Debi Sahai, ILR 25 All 468(PC) (A). There their Lordships held that under the Hindu Law of the Benares School property, which a woman has taken by inheritance from a female is not her stridhana in such a sense that on her death, it passes to her stridhan heirs in the female line to the exclusion of males and that the sons were held entitled to succeed to such property in preference to her daughter. The principle underlying the decision is stated at p. 474 as follows:
The rule has often been expressed by stating that what has once descended as stridhana does not so descend again From that, it has been deduced that, after the death'' of the daughter, it reverts back to the mother. So stated, the proposition is unexceptionable. But the Judicial Committee had given preferential right to succeed to the grandson in competition with the granddaughter. That that position is not sound has been authoritatively stated by a Full Bench of the Madras High Court in Subramaniya Chetti v. Aruna-chelam Chctty, ILR 28 Mad 1 (J) There a Hindu widow sold her stridhanain propeiiy to (lie plainlills who filed a suit for declaration of the title. Jt was contended that on the death oi: the vvdow, the property devolved on her husband''s lineal male descendants, and that in consequence, the sale to the Plaintiffs conferred on them no title to the property.
The learned Judges held on the I acts of that case that the property was the stridhanam property of the widow and that a daughter''s daughter was entitled to take in preference to a daughter''s son the stridhanam of the grandmother. Alter considering the scope of the decision in ILR 25 All 468 (PC) (A), the learned Judges made the following observations which are apposite:
There can therefore, be no doubt that no lines of heirs different from that laid down by the recognised authorities with reference to the descent of stridhanam property in oasjs like the present one or was intended to be laid down by their Lordships in ILR 25 All 468 (PC) (A), and according to these authorities (Mitakshara, Ch. II, S. XI a) (tie Smriti Chan-drika, Ch. IX, S. iii, p. 22; The Madhaiya Bunnell''s Translation, p. 43 and the Saraswathi Vilasa (Foul-ke''s Translation, S. 300, p. 60), a daughter''s daughter is entitled to take in preference. to a daughter''s son the stridhanam of their grandmother.
In Mayne''s Treatises on Hindu Law and Usage, the 11th Edn., at p. 745, the same line of succession is pointed out. The order of .succession is there given as (i) unmarried daughter, (ii) married daughter who is either indigent or childless, (iii) married daughter who is provided for, whether she is childless or not and (iv) daughter'' daughter. Under Hindu Law, a female succeeding to the property of an absolute owner, whether a iemale or a male, does not take an absolute interest. She never becomes a fresh stock of descent. After her death, it reverts back to the heirs of the last male or female holder as the case may be.
In the case of a stridhanam fielder, alter the death of a daughter the property reverts back to the mother, but the next heir of the stridhanam holder is the daughter''s daughter, and the daughter''s daughter takes it not as the heir of her mother, but as the stridhanam heir of her grandmother. In this view, there is no infringement of tire accepted principle that what has once descended as stridhanam does not descend again. The first Defendant, therefore, is not the next heir of his grandmother Chenchamma.
Even if the argument of the learned Counsel is accepted, it does not, in the least, help his client for the prorjerty inherited by the 1st Defendant from his grandmother cannot be an ancestral property in the accepted sense under the Hindu Law, so as to create a right by birth for the Plaintiff. It is now settled by the Judicial Committee in AIR 1937 233 (Privy Council) , that the term ''ancestral'' property must be confined to the properly descending to his father from his male ancestor in the male line, and it is only in that property that the son acquires by birth an interest jointly widi and equal to that of his father. In this view, even if I allow the Plaintiff to change his cause of action, he will not be entitled to any relief.
This appeal fails and is dismissed with costs of Respondents Nos. 1 to 3 and 6 and 8 (one set).
No leave.