Chaliagulla Ramachandrayya v. Boppana Satyanarayana & Others

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 33! of 1961. Appeal from the judgment and decree dated March 29, 1956, of the Andhra Pradesh High Court in Appeal Suit No. 182 of 1950. B. Manavala Chowdhry and B. K. B. Naidu, for the appellants. Narasiah Chowdhry and R. Gopalakrishnan, for Respondents Nos. I, 2 and 8. 1963. May 10. The Judgment of the Court was delivered by DAS GUPTA ].-This appeal brought on a certificate granted by the High Court of Andhra Pradesh is against a decision of that Court reversing decree granted by the Subordinate Judge, Masulipatnam, dismissing a suit for partition. Of the three plaintiffs who brought the suit, two claimed to be the reversioners of Boppauna Chandrappa, to whom we shall refer to as Chandrappa, and the third a purchaser of the interest of some of the reversioners, viz., defendants 4, 5 and 7.

According to the plaint the three plaintiffs were thus entitled to a 5/6th share of the properties while the 6th defendant was entitled as a reversioner of ,Chandrappa to the remaining l/6th share. The property was however in the actual possession of the three sons of Nagayya who were impleaded as the first three· defendants. In contesting the suit these defendants denied that these properties hacj ever belonged to Chandra· ppa and further that the plaintiffs l and 2 or the defondants 4, 5, ti and 7 were his reversioners. The main defence however was that even if the pro· perties did belong to Chanprappa, the defendant's - father Nagayya became entitled to these as Chandrappa's illatom son·in·law.

The' basis of this plea of illatom son-in-lawship was said to be that Chandrappa had brought N agayya into his family under an arrangement that the latter would marry his wife's sister's daughter Mangamma and help him in cultivation and management of the pro· , perti~s, in consid.eration of which Nagayya would mhent the entire property after Chandrappa's death. The Trial Court held that all the suit properties .. except a small portion did belong to Chandrappa Chaliagulla Ram.l· chandro,,vya BoppantJ Satva· naray•n• Das Gupta J, Chaliagu//a Rama• chand1ayya Boppana Sa{.)'a· nara,ana Das Gupta J. and the plaintiffs would be entitled to 5/6th share of Chandrappa 's properties and the 6th defendant to the remaiuing I/6th share, on the death of Chandrappa's widow Ramamma. He however accepted the defence case that Nagayya had become entitled to the property on Chandrappa's death as Chandrappa's illatom son-in-law and accordingly~ dismissed the suit.

On appeal, the High Court held that the cus! tom by which an illatom son-in-law inherited property could not be extended to a case where the marriage took place not with the daughter of the owner of the property but with some other relation of his. The High Court also rejected an alternative plea that appears to have been raised before it that N agayya became entitled to the property on the basi~ of a contract between him and Chandrappa. In this view of the law, the High Court set aside the order passed by the Trial Court and decreed the suit. It is no longer disputed before us that the rights of an illatom son·in-law cannot be claimed by a person who under a promise from the owner of the property that he would inherit the property marries not the daughter but some other relation of the owner of the property.

The alternative contention which was raised before the High Court has however, • been repeated before us, It has been urgedthat' there was a good and valid contract between Chand· rappa and Nagayya, that in consideration of Nagayya marrying Mangamma and looking after Chandrappa's property, Chandrappa'would make him his heir and that the consequence of this contract was that Nagayya became Chandrappa's heir. The question here is not whether on Chandrappa's death Nagayya could have .- obtained specific performance of the alleged contract. For, assuming that there was a contract as alleged and that it was a valid contract, enforceable at law and also such of which specific performance could -.. SUPR.El\IE COURT REPORTS have been obtained by proper proceedings in courts, the appellants' rights would be to seek such specific performance.

The contention on behalf of the appellant is that even though specific performance has not been sought or given the contract itself would have the effect of transferring interest in the property to 'Nagayya on Chandrappa's death. In support of this contention the learned Counsel relied on three decisions of High Courts in India and also a decision of the Privy Council. The first decision in point of time is the case of Ohalla Papi Reddi v. Ohalla Kati Reddi ('). The facts there were that the defendant's father who was selected by Musalireddi, in pursuance of a special custom, as a son-in-law who should take his property as if he was a son entered into possession of the pro- • perty on Musalireddi's death. He then associated with himself the plaintiff in the management of his property on promise of a sha:e:

T?e plaintiff continued thus for many years, a1dmg 1n the management and improvement of the property, until a short time before the suit was brought, the first defendant turned the plaintiff out of doors and refused to give him the promised share. The High Court of Madras held that the agreement by the first defendant's father was to the effect that the plaintiff was being - admitted to the rights of a co-sharer and further, as there was a complete adoption or ratification of the father's contract by the first defendant he ought to be held to it and the plaintiff was therefore a co-sharer in the property. It has to be mentioned that this case was decided long before the Transfer of Property Act, , 1882 was enacted and the question whether a written document was necessary for transfer did not come up for consideration. In Bhalla Nahana v. Prabhu Hari ('),which was the next case cited, what happened was that one Gosai Chaliagu 1la Ram•· ch{,jndrayya Boppana Saty .. /Jas Gyta J. (I)

(1872) 7 Mad, H,C.l{, 25, (2) (1877) 21.L.R. Bom.67, C aliagulla Rcmach2nd1ayya Bop~ana Sa!)'a· narayana Das Gupta J, Ramji induced the parents of the defendant Prabhu Hari to give him in adoption by an express promise to settle his property upon the boy but died before such settlement could. be executed. Nearly 30 years after his death Ramji's widow Bhani gave effect to her husband"s undertaking by executing a deed of · gift of his property in her hands in favour of Prablfu Hari. The reversioner to Gosai Ramji's estate con· tested in a suit brought by him, the validity of tltis alienation.

In holdin~ that the alienation was valid, ,. the High Court of Bombay pointed out that the per· formance of a hnsband's contracts was among the proper and necessary purposes spec-ified by Hindu jurists under which a widow could aiienate property and said further that the equity to compel the heir and legal respresentative of the adoptive father specifically to perform his contracts survived and the property in the hands of his widow was bound by that contract. Whether Prabhu Hari would have been entitled to the property everi in the absence of ~~~e. deed of gift di~ot fall for consideration in that It also deserves to be mentioned that this case was also decided several years before the Transfer of Property Act came into force. In Asita Mohan Ghosh Moulik v. Mohan Gho~h- M oulik (1), one of the questions in dispute was .. whether the adopted son could take a11 equal share with the son.

Answering the question in the affirmative, the High Court of Calcutta after deciding that under the Hindu Law the adopted son was entitled to an equal share, also rderred to an Ikrarnama whick had been executed by the adoptive father, and holding that the Ikrarnama was valid and operative; said that even apart from the law, the adopted son would be so entitled. It is difficult to see how this can be of any assistance m solving our present problem. (I) (1916) 20 c.w.N. so1. Lastly, the learned Counsel relied on the decision of the Privy Council in Malraju Lakhmi Venkayyamma v. Ventaka Narasimha Appa Rao (1). The main qllestion in controversy in that case was whe~her there was a completed contract by which the Rani, the former owner of the property had agreed that the possession of the property would be given to her niece Venkayyamma Kao immediately upon the expiry of her life interest.

The Privy Council held that there was such completed contract and directed the Receiver to deliver possession "upon the terms of the contract now affirmed". It may be mentioned that this decision in Venkayyamma Rao's Gase (1), was among the authorities on which the Calclltta High Court relied in Arif! v. Jadunath Majumdar ('). The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Rao' Case was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal (1), the High Courc's decision was reversed.

The Privy Council pointed out that the dicta in Veukayyamma Rao's Case did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document Cdn be procured) confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument". This decision of the Privy Council in Ariff v. Jadunath Majumdar ('),was given in January 11!31. Nearly two years before that s. 53A had been enacted in the Transfer of Property Act introducing in a limited form the doctrine of equity of part performance. There can, in our opinion, be no doubt that after s. 53A was enacted the only case in which the English doctrine of equity of part performance could (1) (1916) L. R. 43 I.A. 138. (2) (1930) I. L,R, 56 Cal. 1235. (3) (1931) L. R. 58 I. A. 91. Gha/iagulla. Ramachandroyya Btppina Sa{Va· na1oyana Das 1 upta J. Chalit1gulia Ramachandr iyya Bopp4na Satyanarayana JJas Gupta J, ·/963 May IOJ be applied in India is where the requirements of 53A are satisfied.

Quite clearly, s. 53A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a re· gistered instrument. Our conclusion therefore 1s that the High r Court was right in holding that Nagayya or his heirs had acquired no right in the property. The appeal is accordingly dismissed. In the circumstances of the case, we make no order as to costs. Appeal dismissed. KIRPAL SINGH STATE OF U.P. (B. P. SINHA c . .J., J. c. SHAH & N. RAJAGOPALA AYYANGAR JJ.) Criminal Law-Committal proceedings-Powers and duties of the Mnqistrate-Desirability to examine all the witne8ses to the actual commission of the offence-Code of Criminal Pro· cedure, 1898 (Act 5 of 1898), as amended by Act 26 of 1955, ss.173, 207A (4).

The appell~nt was convicted by the Sessions Judge of the offence of murder of K and sentenced to death, and the con· viction and sentence were confirmed by the High Court. The committal proceedings disclosed that the Magistrate committed the accused to the Court of Session without recording the evidence of the \\dtnesses to the actual commis~ion of the offence. Held that under s. 207 A of the Code of Criminal Pro· cedure, 1898, as amended by Act 26 of 1955, a Magistrate ha.s • r