Point of law: Plaintiff cannot take shelter under Section 12(b) of the Act, to claim share in the suit schedule properties

JUDGMENT :

This appeal is directed against the judgment in OS No.51/2005 by learned Additional Civil Judge (Sr.Dn) Raichur, on 10-12-2007 which came to be confirmed in RA No.3/2008 by the learned Principal District Judge, Raichur, on 22-01-2010, whereby the suit for partition by the appellant came to be dismissed.

2. The facts that are necessary for the purpose of this second appeal are as below:

The undisputed facts are that the plaintiff, defendant Nos.5,6 and 7 and another Ashokraj are the genitive children born to defendant No.1 from the propositus Kamvar Elluru Pandurangappa. The defendant Nos. 2 to 4 are wife and children of deceased Ashokraj, who was the first son of defendant No.1 and Kamvar Elluru Pandurangappa. It is also an admitted fact that the father of the plaintiff, Elluru Pandurangappa died intestate on 27-12-2004. He left behind him the suit schedule A to D properties. It is also an admitted fact that Elluru Pandurangappa and his wife, the defendant No. 1, had executed an Adoption Deed in favour of P. Vishnu and P. Shantabai on 22-12-1974. But the plaintiff contends that the adoption is bad in law.

3. The plaintiff who is before this Court in second appeal contended that soon after the death of his father Ellur Pandurangappa, he demanded his 1/5th share in the suit properties and the defendants denied the same and as such, he was constrained to file the suit for partition. It was also stated that the defendants denied the share of the plaintiff contending that the plaintiff was given in an adoption to one P. Vishnu and his wife P. Shanthabai of Hyderabad. It was contended that the alleged adoption being in the year 1974, at which time, he was aged 24 years, the adoption was without his consent and was prohibited under the provisions of Sec.10 of Hindu Adoptions and Maintenance Act, 1956 ( 'the Act' for brevity).

4. The defendant Nos.1, 5 to 7 resisted the said suit contending that the plaintiff was given in adoption to one P. Vishnu and P. Shanthabai of Hyderabad and though no ceremony could not be performed during the life time of P. Vishnu, the ceremony was performed later by P. Shanthabai under the instructions of her late husband. In pursuance to the factum of adoption, a Deed of Adoption came to be registered on 22-12-1974, which was executed between the said P. Shantabai and Elluru Pandurangappa, with the defendant No.1 as consenting party. It was specifically contended that the plaintiff was aged 23 years at the time of the adoption and he was brought up by the adoptive father much prior to the date of Adoption Deed. It was also contended that in Vysya community, to which the parties belong to, adoption of a child beyond 15 years was valid in Hyderabad Karnataka Area, as per the prevailing customs. They also contended that the eldest son Ashokraj had separated from the family long back by taking his share and had gone out of the family. It was contended that after the demise of Elluru Pandurangappa, the defendant Nos. 1,6 and 7 were alone entitled to succeed to the suit schedule properties and as such, the suit is liable to be dismissed.

5. The defendant Nos. 2 to 4 contended in their written statement that they are also entitled for partition and separate possession in the suit properties and as such, they claimed 7/30th share.

6. On the basis of the above pleadings, the Trial Court framed the following issues :

1. Whether the plaintiff is entitled to get share in the suit properties? If so, at what share?

2. Whether the defendants prove that the plaintiff has gone in adoption has no share in the suit properties?

3. Whether the plaintiff proves that the suit properties are joint family properties of the plaintiff and defendants?

4. Whether the court fee paid in the plaint is proper and correct?

5. What order or decree?

7. Plaintiff was examined as PW1 and Exs.P1 to P10 were marked in evidence. On behalf of the defendant No. 1 and 5 to 7, the defendant No.7 was examined as DW1 and another witness was examined as DW