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2010 Supreme(Kar) 681
High Court of Karnataka
THE HONOURABLE MR. JUSTICE D.V. SHYLENDRA KUMAR & THE HONOURABLE MR. JUSTICE N. ANANDA
B.Y. Narasimha Prasad
Versus
H.S. Saraswathi
Regular First Appeal No.1234 of 2009
Date of Judgment : 29-06-2010
For the Appellant:A. Madhusudhana Rao, Advocate. For the Respondent:K. Giridhar, Advocate.
Headnote:HINDU ADOPTION AND MAINTENANCE ACT, 1956 - Section 10: [D.V.Shylendra Kumar & N.Ananda,JJ] Suit for injunction - Plaintiff alleged to have been adopted by deceased one ’S’ and Defendant Twice - Defendant was the wife of ’S’ - School record and driving licence of plaintiff showing the name of genetic father of plaintiff -No registered deed of adoption - Trial Court holding that plaintiff has failed to prove the factum of adoption - No evidence to show that Defendant was a consenting party - Held, plaintiff failed to prove the factum of adoption.
HINDU SUCCESSION ACT, 1956 - Section 14 (1) & (2): [D.V. Shylendra Kumar & N. Ananda,JJ] Right of Hindu Widow - It was the specific case of plaintiff that registered Will (marked as Ex.P.13) in respect of suit schedule property, creating first life estate in favour of plaintiff and bequeathing the vested remainder in favour of Class-I legal heirs of plaintiff - It was not in dispute and cannot be disputed that defendant had pre-existing right of maintenance in terms of Section 22 of the Act in the property held and left by late SRSR. From the recitals of the Will it is found that late SRSR had be bequeathed the suit schedule property in favour of defendant for her maintenance, however with a restrictive covenant that she shall not have right of alienation in favour of whom so ever. Held, The law is fairly well-settled that creation of the estate after the advent of the Hindu Succession Act, 1956 is abolished, subject to Section 14(2) of the Act. In terms of Section 14(1) of the Hindu Succession Act, 1956 any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner there of and not as a limited owner, subject to restrictions contained in Section 14(2) of the said Act. In the case on hand, it is not in dispute and cannot be disputed that the defendant had pre-existing right in terms of Section 22 of Hindu Adoptions and Maintenance Act. The suit schedule property was the only property held by late SRSR which has been given to defendant for her maintenance, however with a restrictive covenant. In view of the provisions contained in Section 14(1) &14(2) of the Hindu Succession Act the restrictive covenants cannot operate and defendant is entitled to own the suit schedule property as absolute owner in terms of Section 14(1) of the Hindu Succession Act.
N. Ananda, J.
The unsuccessful plaintiff in O.S.No.10745/2006, who had sought for the following reliefs has filed this appeal:-
“17) Wherefore, it is more respectfully prayed that this Hon’ble Court be pleaded to pass a judgment and decree in favour of the plaintiff and against he defendants, and declaring that the defendants has only a life interest in the schedule property in view of the registered will dated 05.04.1991 executed by late Sri S.R. Shankaranarayana Rao, and granting a decrees of permanent injunction restraining the defendant from a alienating or inducting any third parties in the suit schedule property, award costs and grant such other reliefs as this Hon’ble Court deem fit to grant in the circumstances of the case.
2. We have heard the learned Counsel for parties.
3. The points that would arise for determination are as follows:-
1. Whether the plaintiff has proved that he was the adopted by late S.R. Shankaranarayana Rao, husband of defendant and defendant?
2. Whether the plaintiff has proved that late S.R. Shankaranarayana Rao had executed a registered will dated 05.04.1991 (Ex.P13), creating first life estate in favour of defendant and second life estate in favour of plaintiff, bequeathing vested remainder in favour of class-1 heirs of plaintiff?
3. Whether the impugned judgment calls for interference?
4. What order?
4. The relevant facts as found in the pleadings, evidence and finding recorded by trial Court are as follows:-
The plaintiff is the son of younger sister of defendant. Late S.R. Shankaranarayana Rao, was the husband of defendant and he was the absolute owner of suit schedule property. Late S.R. Shankaranarayana Rao and defendant had no issues. The plaintiff styling himself as the adopted son of late S.R. Shankaranarayana Rao and defendant, filed a suit, inter alia contending the defendant has restricted rights under the registered will dated 05.04.1991 and sought for the aforestated reliefs.
The plaintiff has also referred to proceedings in HRC No.422/1999 and other legal proceedings, wherein the plaintiff has been described as the adopted son of late S.R. Shankaranarayana Rao.
The institution of instant suit had been preceded by exchange of two legal notices and two reply notices as per Ex.D1 and Ex.D.2 and Ex.P.11 and Ex.P.12. The defendant has denied the plant averments. The defendant had caused reply notices as per Ex.D.2 and Ex.P.12, denying that plaintiff is the adopted son of late S.R. Shankaranarayana Rao and genuineness of the registered will date 05.04.1991. The defendant reiterated the same in the written statement and sought for dismissal of the suit. The defendant has not only questioned the validity of adoption but also denied execution of registered will dated 05.04.1991 and contended that the will was not executed by late S.R. Shankaranarayana Rao; late S.R Shankarnarayana Rao could not have created life estate in favour of defendant, who admittedly had pre-existing rights of maintenance, under Section 22 of the Hindu adoption and maintenance Act, 1956 (for short, the Act)
5. The learned Trial Judge framed following issues: Issues
1. Karnataka
2. Karnataka
3. Karnataka
4. Hindu Adoption and Maintenance Act
5. Karnataka
6. Karnataka
7. Karnataka
1. Karnataka
2. Karnataka
6. During trial, the plaintiff got himself examined as PW1. PW2-B. S. Sathyanarayana, who is alleged to have witnessed the adoption, which according to him took place on 06.05.1990. PW3-K Omprakash Karanth and PW-4M. Sudheendra are alleged to be the attesters of will and PW5- K.V. Bachi Reddy is alleged to be the scribe of registered will dated 05.04.1991. The documents produced on behalf of plaintiff were marked as Ex.P.1 to Ex.P.16. The defendant did not adduce oral evidence. However, documents produced by defendant were marked as Ex.D1 & Ex.D.2.
7. The learned Trial Judge on appreciation of oral and documentary evidence and also bearing in mind the principles of law regarding proof of factum of adoptio
