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CASE NO.:

Appeal (civil) 4101 of 2006

PETITIONER:

M. Gurudas & Ors.

RESPONDENT:

Rasaranjan & Ors.

DATE OF JUDGMENT: 13/09/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Civil) No. 12 of 2006]

WITH

CIVIL APPEAL NO. 4102 OF 2006

[Arising out of SLP (Civil) No. 843-844 of 2006]

S.B. SINHA, J :

Leave granted in S.L.Ps.

These appeals involving common questions of law and fact and

having arisen from a common judgment were taken up for hearing

together and are being disposed of by this common judgment.

One M. Obalappa was the owner of the property. He had three

sons, viz., Nagappa, Obalappa and Kadarappa. M. Obalappa died in

1889. Nagappa separated himself in the year 1913. Obalappa and

Kadarappa were, thus, in joint possession of the properties in suit.

Obalappa died in 1949. He had no issue. The plaintiffs-respondents are

said to be the heirs of the natural daughter of Kadarappa, viz., Nirmala.

Allegedly, she was adopted by Obalappa during his life time. Kadarappa

died in 1961 leaving seven sons and one daughter Nirmala, whose heirs

and legal representatives of the plaintiffs claimed themselves, she died in

the year 1999. The children of Kadarappa, Gurudas and Others, and their

sons, Sagunarthy and Shivarthy, are the Appellants in Civil Appeals

arising out of SLP (C) No. 12 of 2006 and 843-44 of 2006 respectively.

The properties involve Survey No. 97/2 Old No. 46-C,

Doddabylakhana, Lalbagh Road, Bangalore and Survey No. 66 and 75/1,

Sarakki, Uttarhalli Hobli, Bangalore.

The purported adoption of Nirmala by Obalappa is in question in

the suit. It is, however, not in dispute that on or about 12.9.1947,

Obalappa had executed a deed of gift in favour of Nirmala showing her as

daughter of Kadarappa but under his guardianship whereas the heirs of

Nirmala claimed that Nirmala inherited the property on his death, which

as noticed hereinbefore took place in 1949. According to the Appellants,

the joint family property devolved by survivorship to Kadarappa. A

purported partition took place between Kadarappa and his sons on

15.6.1954. Nirmala was not given any share therein. It is stated that she

was not entitled thereto.

The property bearing Survey No. 97/2 is said to have been acquired

by Brahmanandadas by way of a deed of sale executed by Khaja

Ghulam Sheriff from 18.07.1955. It is furthermore not disputed that

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Kadrappa has transferred three properties in favour of Nirmala as a

trustee, referring her to be the foster daughter of Oblappa and describing

the said properties to be held in trust. The Appellants herein contend that

Nirmala, during her life time, never claimed to be an adopted daughter

and she did not have any interest in the joint family properties. In fact in

a writ petition questioning acquisition of some properties which were the

subject matter of writ petition No. 15217-21 of 1987, she had allegedly

admitted that the properties which were subject matter of acquisition were

separate and distinct.

The claim that Nirmala was the adopted daughter, however, was

specifically pleaded by the plaintiffs.

The suit was filed by the Respondents on 7.09.2000 wherein the

following reliefs were prayed for:

"WHEREFOR, the plaintiff prays for a judgment

and decree for partition of their share in the

schedule property:

a) Directing the partition of the suit Schedule

and to allot them in favour of plaintiffs

b) Restrain the defendants, their agents or any

person claiming through from alienating the suit

properties, by granting an order of permanent

injunction.

c) To order directing enquiry into mesne

profits under order XX Rule 12 Code of Civil

Pro