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2007 Supreme(Kar) 878
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Chidananda Ullal and H.N. Nagamohan Das, JJ.
Basappa S/o. Late Lakkaiah Uruf Guruvaiahna Doddahyda (since dead by L.Rs. Devamma W/o. Late Basappa and others) —Appellant
Vs.
Sri Rangappa S/o. Late Lakkaiah Uruf Guruvaiahna Doddahyda and others —Respondent
AND
Rangappa (since dead reptd. by his L.Rs. Smt. Putta Boramma W/o. Late Rangappa and others) —Appellant
Vs.
Smt. Channamma W/o. Late Lakkaiah Uruf Guruvaiah Doddahyda and others —Respondent
Regular First Appeal Nos. 260/1994 and 444 of 1999
Decided on : 03-10-2007
Advocate Appeared:
Mr. A. Nagarajappa, V. Rangaramu, for the Appellant
Mr. V. Rangaramu, P.S. Manjunath, T.H. Narayana, P.S. Manjunath, for the Respondent
Validity of adoption under Hindu Adoption and Maintenance Act, 1956 and its impact on coparcenary rights in ancestral properties.
Headnote:
Adoption - Hindu Adoption and Maintenance Act, 1956 - Sections 5 to 17 - Validity of adoption without Dattaka Homa - Plaintiff No. 3's adoption to Rangegowda established through registered settlement and sale deeds - Plaintiff No. 3 ceased to be coparcener of joint family of natural parents - Trial court's decree declaring plaintiff No. 3 entitled to 7/18th share set aside
Fact of the Case:
Plaintiffs filed suit for partition of ancestral properties, claiming entitlement to shares. Defendant No. 1 contested, claiming sole coparcenary rights and challenging plaintiff No. 3's status as coparcener due to adoption to Rangegowda. Trial court declared shares based on notional partition.
Finding of the Court:
Trial court erred in declaring plaintiff No. 3 entitled to 7/18th share as his adoption to Rangegowda was established through registered settlement and sale deeds, ceasing his coparcenary status. Defendant No. 1's claim of sole coparcenary rights also rejected.
Issues: Validity of plaintiff No. 3's adoption and entitlement to share, defendant No. 1's claim of sole coparcenary rights, and effect of acquisition of portion of properties by defendants No. 3 and 4.
Ratio Decidendi: Plaintiff No. 3's adoption to Rangegowda established through registered deeds, ceasing his coparcenary status. Defendant No. 1's claim of sole coparcenary rights rejected. Plaintiff No. 3 not entitled to share in ancestral properties. No relief granted for acquisition of properties by defendants No. 3 and 4 due to absence of prayer in the suit.
Final Decision: R.F.A. No. 260/1994 allowed, R.F.A. No. 444/1999 dismissed. Trial court's decree set aside, and shares declared as plaintiffs No. 1, 2, 4, and defendant No. 2 entitled to 1/10th share each, and defendant No. 1 entitled to 1/6th share in the schedule properties.
H.N. Nagamohan Das, J.— These two appeals arise out of the judgment and decree dated 23.9.1993 In O.S. No. 75/1990 passed by the learned Additional Civil Judge at Mysore, decreeing the suit for partition.
2. Appellant in R.F.A. No. 260/1994 is the 1st defendant and respondents No. 1 to 4 are the plaintiffs and respondents No. 5 to 7, are defendants No. 2 to 4 before the trial court. Appellant in R.F.A. No. 444/1999 is the 3rd plaintiff and the respondents are the plaintiffs No. 1, 2 and 4 and defendants before the trial court In this judgment, the parties are referred to their status before the trial court.
3. Plaintiffs contend that common propositor, Lakkaiah, died leaving behind his wife, three daughters and two sons as his legal representatives to succeed to his estate the schedule properties. Plaintiff No. 1 is the wife, plaintiff No. 2, 4 and defendant No. 2 are the daughters. Plaintiff No. 3 and defendant No. 1 are the sons of deceased Lakkaiah. The 1st defendant refused to partition and divide the schedule properties and to put the plaintiffs in separate possession of their respective share and therefore they filed O.S. No. 75/1990 for partition.
4. Defendants entered appearance before the trial court. Defendant No. 1 is the contesting defendant and filed written statement inter alia contending that plaintiff No. 3 was given in adoption to their uncle by name, Rangegowda and therefore he ceased to be the coparcener of joint family of the 1st defendant. On the demise of propositor, Lakkaiah, the 1st defendant is the only sole surviving coparcener and succeeded to the schedule properties and therefore he contends that plaintiffs are not entitled for share in the schedule properties. The 1st defendant further contends that the 1st plaintiff, the wife of common propositor, Lakkaiah, took her share by way of cash and jewellery and separated from the joint family. He further contends that some of the schedule properties are acquired by defendants No. 3 and 4 and they are not available for partition.
5. On the basis of pleadings, trial court framed the following eight issues:
(1) Whether plaintiffs prove that they along with defendants 1 and 2 are members of joint family and suit schedule p properties are their joint family properties?
(2) Whether 1st defendant proves that he became the sole surviving coparcener after the death of his father and became the absolute owner of the entire properties or contended in para-1 of his written statement?
(3) Whether plaintiffs prove that plaintiff 1, 2 and 4 are entitled to 1/18th share each and 3rd plaintiff is entitled to 7/18th share in the suit schedule properties?
(4) Whether the 1st defendant proves that 1st plaintiff relinquished all her rights in the plaint schedule properties as contended in para 1 of his written statement?
(5) Whether 1st defendant proves that the claim of the plaintiffs, if any, has been barred by principles of adverse possession as contended in papra 1 of his written statement?
(6) Whether plaintiffs prove that acquisition proceedings initiated by the 3rd and 4th defendants do not bind their share and share of the 2nd defendant as contended in para 8 of their plaint?
(7) Whether plaintiffs are entitled for partition by metes and bounds and separate possession of their share as claimed?
(8) To what relief plaintiffs are entitled?
6. Plaintiffs examined two witnesses as PWs. 1 and 2 and got marked Exs.P1 and P2. Defendants examined two witnesses as DWs.1 and 2 and got marked Exs.D1 to D3. Trial court after hearing both the parties and on appreciation of the pleadings, oral and documentary evidence on record concludes that the defendants have failed to prove and establish that plaintiff No. 3 was given in adoption to his uncle, Rangegowda. Trial court further held that on the demise of common propositor, Lakkaiah, plaintiff No. 3 and defendant No. 1 succeeded to the schedule properties as coparceners. On a notional partition, trial court allotted 1/3rd share each to
