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2007 DIGILAW 583 (KAR)

SIDDAMMA v. RAYANAGOUDA

2007-09-10

V.JAGANNATHAN

body2007
V. JAGANNATHAN, J. ( 1 ) THE defendant before the trial Court is the appellant herein and she is aggrieved by the lower appellate Court reversing the judgment and decree of the trial Court and declaring that the plaintiff is also entitled to half share in the suit properties and the appellant herein has been restrained from receiving the compensation amount to the extent of said half share of the plaintiffs in the suit properties. The trial Court had dismissed the suit filed by the plaintiff for a declaration that he be declared as the absolute owner of the entire suit schedule properties and to receive the compensation in respect of the said properties. Hence this second appeal by the defendant. ( 2 ) THE facts briefly stated are to the effect that the respondent-plaintiff filed the suit in O. S. No. 180/1989 praying the trial Court that he be declared as the absolute owner of the suit schedule properties in S. Nos. 76 and 120 having panchayath numbers 35, 36 and 37 and for the compensation in respect of the same following the suit schedule properties having been acquired in connection with Upper Krishna Project. The basis for the said claim made by the plaintiff is that he was the adopted son of he appellant herein and the adoption took place in the year 1975 after the death of ninganagowda, husband of the appellant herein and, therefore, by virtue of the said adoption having taken place and the adoption deed also mentioning that the adopted son will have all the rights in respect of the properties of the adoptive father, the plaintiff, therefore, was entitled to be declared as the owner of the entire suit schedule properties and consequently to receive the compensation in respect of the said properties. The said suit of the plaintiff was resisted by the appellant herein, who is the adoptive mother, by contending that, following the death of her husband ninganagowda in the year 1975, only the appellant and Yamanawa, her mother-in-law, were left behind and while they were in a state of great shock and grief, the father of the first plaintiff took advantage of the said situation and forced the appellant to take the respondent-plaintiff in adoption and, therefore, there is no adoption as such in the eye of law and the plaintiff had also instituted a similar suit earlier in O. S. No. 106/1980 and the said suit was dismissed for non-prosecution and on all these grounds, the appellant sought for dismissal of the suit filed by the respondent-plaintiff-1. ( 3 ) THE pleadings to the above effect led the trial Court to frame four issues and one additional issue and the learned judge of the trial Court, after appreciating the evidence on record, held that the appellant herein has failed to establish that the first plaintiff is not her adopted son and answered the other two issues concerning plaintiffs claim as full owner of the suit properties and for injunction in the negative and answered the additional issue by holding that the suit filed was not maintainable in view of the dismissal of the earlier suit in O. S. No. 106/1980 and consequent to these findings, the suit of the respondent-plaintiff was dismissed giving rise to an appeal being preferred by the plaintiffs before the lower appellate court in R. A. No. 107/2001. ( 4 ) THE learned judge of the lower appellate Court, after considering the material before him, framed the following issues for consideration: i) Whether the appellant/plaintiff proves that he was the absolute owner of the suit property on the strength of adoption? ii) Whether the appellant/plaintiff proves that the Trial Court has committed error in dismissing the suit, therefore, interference of this Court is required? iii) What order or decree? ii) Whether the appellant/plaintiff proves that the Trial Court has committed error in dismissing the suit, therefore, interference of this Court is required? iii) What order or decree? The learned Judge of the lower appellate Court answered the first issue partly in the affirmative and the second one in the negative and as a result of this, the appeal filed by the plaintiff was allowed in part by holding that the plaintiff is declared to be entitled to half share in the suit schedule properties and to receive the compensation in respect of the said share and the appellant herein was restrained from receiving the compensation to that extent. It is this judgment and decree of the lower appellate Court that is called in question in this second appeal by the defendant. ( 5 ) I have heard the learned Counsel for the parties and perused the entire material on record. At the stage of admitting this appeal, this Court had framed the following substantial questions of law for consideration: i) Whether the Court below is justified in decreeing the suit when admittedly the plaintiff was adopted under a registered deed after the properties in question was vested with the defendant after the death of her husband and whether such vesting could be divested by virtue of the adoption, in view of Section 12 (c)of the Hindu Adoption and Maintenance Act? ii) Whether the present suit filed by the respondents-plaintiffs is barred by virtue of filing the earlier suit in O. S. No. 106/ 1980 and withdrawing the same without permission for filing a fresh suit on the same cause of action? ( 6 ) SRI Sanjay S. Katageri, learned Counsel for the appellant, submitted that the facts which are not in dispute are that Ninganagowda died on 10-9-1975 leaving behind him his wife Siddamma (defendant) and Yamanawa, his mother. Therefore, following the death of Ninganagowda, the suit schedule proprieties got vested in Siddamma and she became the absolute owner thereof by virtue of Section 6 of the Hindu Succession Act, 1956 (for short 'the Succession Act' ). Consequently, even if the adoption of the plaintiff is taken as having been proved, yet, the adopted son would not have divested Siddamma from being the absolute owner of the suit schedule proprieties. Consequently, even if the adoption of the plaintiff is taken as having been proved, yet, the adopted son would not have divested Siddamma from being the absolute owner of the suit schedule proprieties. In this regard, he referred to Section 12 (c) of the Hindu adoption and Maintenance Act, 1956 (for short 'the Adoption Act') to contend that an adopted child cannot divest any person of any estate which is vested in him or her before the adoption. Ad far as the terms of adoption deed Ex. P-1 is concerned, it was submitted that there was no agreement to indicate that Siddamma had agreed to divest herself of the suit schedule proprieties contrary to Section 12 (c) of the Adoption Act and, therefore, in the absence of the adoption deed indicating any agreement entered into during the time of adoption with regard to Siddamma divesting herself of her rights in the suit schedule properties, the adoption deed Ex. P-1, therefore, cannot take away the right vested in Siddamma by virtue of section 6 of the Succession Act and, as such, the lower appellate Court not justified in declaring that the plaintiff is entitled to half share in the suit schedule properties. In support of the said submissions, the learned Counsel for the appellant placed reliance on the decisions reported in AIR 2001 SC 266 , AIR 2003 SC 1735 , 1990 (1) SCC 1 and AIR 1967 SC 1761 to submit that Section 12 (c) of the Adoption Act read with Section 6 of the Succession act will make it clear that following the death of Ninganagowda, the suit properties became the absolute properties of Siddamma and, therefore, the judgment and decree of the lower appellate Court requires to be set aside in so far as giving half share to the respondent-plaintiff. ( 7 ) AS regards the maintainability of the suit is concerned, it is submitted by the learned Counsel for the appellant that it is not in dispute that the earlier suit filed was dismissed for non-prosecution in O. S. No. 106/ 80 and the cause of action in the said suit and the present one being one and the same, by virtue of Order 23, Rule 1 of the CPC read with Rules 4 and 5 of the said order, it becomes clear that the plaintiff will be precluded from instituting a fresh suit in respect of the same subject matter. Learned counsel also referred to Order 9, Rules 8 and 9 of the CPC to submit that the suit of the plaintiff is clearly barred in view of the said provisions. As leave was not sought to institute a fresh suit, the dismissal of earlier suit, therefore, does not give the plaintiff any liberty to approach the Court once again for the very same relief. In support of the above submissions, learned Counsel placed reliance on the decisions reported in AIR 1965 SC 295 , AIR 1970 SC 987 , 1984 KLJ 35 and ILR 2000 Karnataka 1651 to submit that where the relief claimed in both the proceedings are one and the same, the second suit is clearly barred under Order 23, Rule 1 (4) (b) of the CPC. He also referred to the decision reported in AIR (37) 1950 Federal court 1 to submit that the facts of the said case pertains to the right of redemption of a mortgage and not the one that is the subject matter of the present suit. ( 8 ) THEREFORE, it was submitted that the view taken by the trial Court with regard to the suit being not maintainable is correct and that of the lower appellate Court is erroneous. ( 9 ) ON the other hand, Shri. V. Tarakaram, learned Senior Counsel for the respondent-plaintiff, insofar as the maintainability of the suit is concerned, referring to the pleadings of the parties, submitted that the dismissal of the earlier suit for non-prosecution cannot have any bearing insofar as the present suit is concerned and the defendant in the written statement has not controverted the averments made by the plaintiff at paragraph-5 of the plaint. It was submitted that the case did not fall within the provisions of Order 23, Rule 1 of the CPC and, therefore, the second suit was not barred. As regards vesting of the properties in Siddamma is concerned, it is submitted that the adoption deed Ex. P-1, being a registered deed, a presumption will have to be drawn in accordance with Section 16 of the Adoption Act, 1956 and, therefore, the plaintiff was adopted by siddamma has to be taken as proved and even the Courts below have also come to a concurrent finding on this aspect of the matter. However, the controversy is with regard to the nature of the suit properties in the hands of Siddamma at the time of adoption. In this regard, it was submitted that the suit properties, being the joint family properties, continue to remain the same in character even after the death of Ninganagowda and there was no vesting of any absolute ownership in Siddamma over the suit properties, but it was only vesting in possession and, therefore, the event of adoption does not change the nature of the property from being other than the joint family properties. Therefore, the plaintiff on being taken in adoption on 21-10-1975 and the said adoption having been put on record on 23-10-1975 as per Ex. P-1, all the requirements of a valid adoption, therefore, are fulfilled in the instant case. As such, the plaintiff being the adopted son will also be entitled to equal share along with Siddamma as both of them become Class-I heirs. It was further submitted that, at the time of death of Ninganagowda, those who were left behind were siddamma, the appellant herein, and Yamanavva, mother of ninganagowda, and therefore, both Siddamma and Yamanavva succeed to the suit properties and as Yamanavva died subsequent to the adoption having taken place, the plaintiff is entitled to his share even in respect of the share held by Yamanavva and, as such, the conclusion reached by the lower appellate Court is in accordance with law requiring no interference by this Court. In support of the above submissions, the learned senior counsel placed reliance on the decisions reported in AIR 1967 SC 1761 , air 1987 SC 398 , AIR 1988 SC 845 , 2001 (1) SCC 486 , ILR 1987 Karnataka 3590, AIR 1950 FC 1, AIR 1970 SC 987 , ILR 1979 Karnataka 1180, 1995 (6) Kar. L. J. 143 and AIR 1981 Bombay 109 and also referred to a quotation from Ramanath Iyer's Law Lexicon to contend that the duty of the Court is to ensure that justice is done to the case on hand and the technicalities should not come in the way of achieving the said goal. ( 10 ) HAVING thus heard the learned Counsel for the parties, the point for consideration in the light of the questions of law framed by this Court is as to whether Siddamma became the absolute owner of the suit schedule properties by virtue of Section 12 (c) of the Adoption Act and whether the suit filed by the respondent-plaintiff is barred by virtue of an earlier suit having been filed in O. S. No. 106/1980. ( 11 ) TO deal with the question of maintainability of the suit at first, it has to be noted that there is a specific averment made in the plaint to the effect that the earlier suit came to be dismissed as withdrawn following an assurance given by the respondent to the plaintiff that compensation amount would be given to the plaintiff and it is on the basis of this assurance that the plaintiff did not prosecute the suit which ultimately came to be dismissed for non-prosecution. The said averment made in paragraph-5 of the plaint has not been disputed nor denied in the written statement filed by the appellant herein. Except saying in paragraph-4 of the written statement that the suit of the plaintiff in O. S. No. 106/1980 was dismissed for non-prosecution, there is no other averment made to defend the plaintiffs stand taken in paragraph-5 of the plaint. Therefore, there is enough force in the submission made by the learned Senior Counsel that there was no question of any right being extinguished to bar the second suit. Therefore, there is enough force in the submission made by the learned Senior Counsel that there was no question of any right being extinguished to bar the second suit. Secondly, as there was no denial in the written statement in respect of the stand taken by the plaintiff at paragraph-5, the question of the present suit being barred by virtue of Order 23, Rule 1 of the C. P. C. , therefore, will not arise. Since the plaintiff has come out with explanation in paragraph-5 of the plaint, the question of the second suit being barred will not arise. ( 12 ) AS regards the legal position is concerned, it is to be stated that in the decision referred to by the learned Senior Counsel in Thota China subba Rao Vs. Mallapalli Raju, AIR (37) 1950 Federal Court 1, it has been held that unless the right is extinguished, the second suit for redemption is not barred. In the decision in the case of Thimmappa shambhu Bhatta Vs. Ramachandra Krishna Bhatta, ILR 1979 Karnataka 1180, it has been observed by a learned Single Judge of this Court that if acceptable explanation is offered for withdrawal of the earlier suit, a second suit can be maintained. ( 13 ) I have carefully considered the ruling referred to by the learned counsel for the appellant in so far as the submission concerning the suit being not maintainable is concerned. In all the decisions referred to by the appellant's Counsel, the Court found that the facts of the two cases were one and the same and therefore, it was held that on the same cause of action subsequent suit cannot be maintained, unless the requirement of order 23, Rule 1 are fulfilled. It may also be necessary to mention that in so far as the decision reported in AIR 1965 SC 295 is concerned, in the said case, on facts, it was found that the suit was instituted on 28-11-1931 and after the issue was settled, the suit was posted for trial on 22-8-1932 on which date, the plaintiffs were absent. No witness was present on their behalf and their pleader reported no instructions and under these circumstances, the suit was directed to be dismissed with costs. No witness was present on their behalf and their pleader reported no instructions and under these circumstances, the suit was directed to be dismissed with costs. Whereas in the case on hand, the specific stand taken by the plaintiff in the suit at paragraph No. 4 is that the earlier suit was dismissed at the instance of the mother of the plaintiff herein on the promise that the plaintiff would be given the compensation and it was under these circumstances, the other suit came to be dismissed and as the defendant did not live up to his promise of giving compensation, the present suit, therefore, came to be filed. ( 14 ) IN view of the said pleadings which are also not being specifically denied in the written statement in my considered opinion the cause of action cannot be said to be one and the same in both the suits, as the plaintiff was denied the compensation as per the promise given to him in the earlier suit, the necessity, to file the fresh suit had arisen. Sine the defendant failed to live up to the promise given to the plaintiff the present suit therefore came to be filed. In such circumstances, it cannot be said that the cause of action is one and the same in both the suits. When once it is concluded that the cause of action are different in earlier suit and the present one, then the observation made by the Apex Court in the case of vallabh Das Vs. Dr. Madanlal reported in AIR 1970 SC 987 will have to be applied to the case of the plaintiff. In the said decision, the Apex Court observed that where the cause of action and the relief claimed in the second suit are not the same as the first suit, the second suit cannot be considered to have been brought in respect of the same subject matters as the first suit. I therefore, agree with the reasoning given by the lower Appellate court in this connection and hold that the suit of the plaintiff could not have been held to be not maintainable. I therefore, agree with the reasoning given by the lower Appellate court in this connection and hold that the suit of the plaintiff could not have been held to be not maintainable. ( 15 ) COMING to the relief claimed by the plaintiff, the learned Counsel for the appellant placed reliance on Section 12 (c) of The Hindu Adoption and Maintenance Act, 1956 to contend that the plaintiff is to be treated as the adopted son of the defendant. Since Siddamma's husband ninganagowda died, the suit properties vested in the name of Siddamma and consequent to the same, plaintiff could not have disturbed Siddamma's rights in respect of the suit properties. It was also submitted that unless there was an agreement to the contrary, the right of adopted parents to dispose of their properties does not get deprived, in view of Section 13 of the Hindu Adoption Act, 1956. In support of the said submissions, the appellant's Counsel referred to the decision of the Supreme Court reported in AIR 2001 SC 266 , AIR 1967 SC 1761 , AIR 2003 SC 1735 . ( 16 ) ON the other hand, learned Senior Counsel for the respondents relying on the decision reported in AIR 1981 Bombay 109, 1990- Vol 1 scc page 1, 1967 SC 1761, 1957 SC 398, 1988 SC 845, (2001) Vol 1 SCC 486, ILR 1987 Kar 3590, contended that the suit properties were joint family properties continued to remain as joint family properties even if only coparcener is left behind surviving the deceased the nature of the property will not change and as such, what was held by Siddamma in her hands was the joint family properties and by virtue of the plaintiff being taken in adoption the plaintiff also became entitled to share in the property which was in the hand of Siddamma. Further more, the adoption deed ex. P1 also makes it clear that the adopted son will have all the rights which a natural born son would have had and therefore referring to such clause in the adoption deed it was contended that the plaintiff is also entitled to his share in the suit properties along with Siddamma. Further more, the adoption deed ex. P1 also makes it clear that the adopted son will have all the rights which a natural born son would have had and therefore referring to such clause in the adoption deed it was contended that the plaintiff is also entitled to his share in the suit properties along with Siddamma. ( 17 ) HAVING considered the submissions of both sides in the light of the decisions cited and also taking into account the entire evidence on record, the undisputed facts are that, Ninganagowda died in the year 1975 i. e. , on 10-9-1975 and the adoption took place on 21-10-1975 and the deed of adoption came to be effected on 23-10-1975 and the said document being registered as adoption deed, the presumption under Section 16 of The hindu Adoption Act, 1956 will have to be drawn in favour of it. Both the courts below have also arrived at concurrent findings on facts with regard to the adoption being valid under law. Therefore when such is the finding of the Courts below with regard to the adoption of the plaintiff is concerned, i do not deed it necessary to go into the validity of the adoption any further. It is also not in dispute that as on the date of he adoption deed coming into effect i. e. , on 23-10-1975 Siddamma i. e. , the wife of Ninganagowda and yamunawa, the mother of Ningangowda were two surviving members of he family. Yamunawa died on 25-7-1978. Therefore, so far as the vesting of the property is concerned, by virtue of Section 14 of The Hindu successions Act, 1956, the property got vested in Siddamma and yamunawa following the death of Ninganagowda and both of the them together became the owners of the suit property. So far as the effect of adoption is concerned, in the case of Namdev Vyankat Ghadge and Another vs. Chandrakant Ganpat Ghadge and Others reported in AIR 2003 SC 1735 dealing with the objects behind Section 12 (c) and Section 13 of the act, the Supreme Court after considering the earlier decision bearing on the point, has observed thus: "if a child was adopted by a widow, he was treated as a natural born child and consequently he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the provision to Section 12 and Section 13 of the Act were incorporated". The Court further observed in the Course of its judgment thus; "on the death of a sole surviving coparcener the properties of the joint family in his hands devolve on his heirs, i. e. , his sons and daughters as per Section 6 of the Hindu Succession Act, 1956, subject to right of maintenance of the widow of another coparcener who died prior to death of sole surviving coparcener. Opening of succession and devolving of properties operate immediately on the death of the sole surviving coparcener and the joint family properties stand vested in his heirs. Where a son was adopted by the widow of a deceased coparcener about four months after the death of sole surviving coparcener by which time the properties had already been vested in his heirs, the adopted son by virtue of his adoption four months after the death of sole surviving coparcener could not divest the properties vesting in the heirs of the sole surviving coparcener so as to claim his share in view of the proviso (c) of the Section 12". ( 18 ) THEREFORE as the adoption took place after vesting all the properties in Siddamma and Yamunawa, in so far as the plaintiff is concerned, he is not entitled to any share in the property i. e. , vested in Siddamma during her life time. However, as regard to the share of Yamunawa is concerned as on the date of death of Yamunawa, the plaintiff having already been adopted, he will be entitled to the share of Yamunawa. ( 19 ) I am of the view that in so far as decision referred to by learned counsel Sri V. Tarakaram is concerned, in view of the authoritative pronouncement of law by the Apex Court Namdev Vyankat Ghadge and another Vs. Chandrakant Ganpat Ghadge and Others reported in AIR 2003 SC 1735 referred to above, I am unable to agree with him that the plaintiff is also entitled to share in the property held by Siddamma as well. Chandrakant Ganpat Ghadge and Others reported in AIR 2003 SC 1735 referred to above, I am unable to agree with him that the plaintiff is also entitled to share in the property held by Siddamma as well. To the said extent, consequently, the order of lower Appellate Court stands modified by holding that in so far as the share of Siddamma is concerned, the plaintiff is not entitled to take any share. But however, in so far as Yamunawa's share is concerned, she being the mother of deceased ninganagowda, following the death of Ninganagowda, the share held by yamunawa will devolve upon the plaintiff, who is adopted son of ninganagowda. It is by virtue of Section 15 (1) (a) of The Hindu Succession act, 1956. In other words, plaintiff will be entitled to half share in the entire suit schedule properties. Thus, the conclusion made by the lower appellate Court in declaring that the plaintiff is entitled to half share in the suit schedule property and defendant consequently being restrained from receiving compensation or to the extent of said half share of the plaintiff in respect of the suit property is concerned, the said conclusion will have to be affirmed. In the result, the appeal therefore will have to fail and the same is dismissed.