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2007 DIGILAW 644 (KAR)

RANGAPPA (DEAD) BY IDS LRs v. CHANNAMMA

2007-10-03

CHIDANANDA ULLAL, H.N.NAGAMOHAN DAS

body2007
JUDGMENT (H.N. Nagamohan Das, J.) - These two appeals arise out of the judgment and decree dated 23-9-1993 in O.S. No. 75 of 1990 passed by the learned Additional Civil Judge at Mysore, decreeing the suit for partition. 2. Appellant in R.F.A. No. 260 of 1994 is the 1st defendant and respondents 1 to 4 are the plaintiffs and respondents 5 to 7 are defendants 2 to 4 before the Trial Court. Appellant in R.F.A. No. 444 of 1999 is the 3rd plaintiff and the respondents are the plaintiffs 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 1 is the wife, plaintiffs 2, 4 and defendant 2 are the daughters. Plaintiff 3 and defendant 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 of 1990 for partition. 4. Defendants entered appearance before the Trial Court. Defendant 1 is the contesting defendant and filed written statement inter alia contending that plaintiff 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 jewellary and separated from the joint family. He further contends that some of the schedule properties are acquired by defendants 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 properties are their joint family properties? 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 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 as contended in para 1 of his written statement? (3) Whether plaintiffs prove that plaintiffs 1, 2 and 4 are entitled to 1/8th 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 para 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 P.Ws. 1 and 2 and got marked Exs. P. 1 and P. 2. Defendants examined two witnesses as D.Ws. 1 and 2 and got marked Exs. D. 1 to D. 3. 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 3 was given in adoption to his uncle, Rangegowda. Trial Court further held that on the demise of common propositor, Lakkaiah, plaintiff 3 and defendant 1 succeeded to the schedule properties as coparceners. On a notional partition, Trial Court allotted 1/3rd share each to the propositor, Lakkaiah, plaintiff 3 and defendant 1. On the demise of Lakkaiah, plaintiffs and defendants 1 and 2 succeeded to the 1/3rd share of Lakkaiah and on that basis, passed the impugned judgment and decree declaring that plaintiffs 1, 2 and 4 are entitled for 1/8th share each and plaintiff 3 is entitled for 7/18th share. On the demise of Lakkaiah, plaintiffs and defendants 1 and 2 succeeded to the 1/3rd share of Lakkaiah and on that basis, passed the impugned judgment and decree declaring that plaintiffs 1, 2 and 4 are entitled for 1/8th share each and plaintiff 3 is entitled for 7/18th share. Hence, the 1st defendant filed R.F.A. No. 260 of 1994 questioning the entire judgment and decree of Trial Court. Plaintiff 3 filed R.F.A. No. 444 of 1999 insofar as it relates to not passing a decree against defendants 3 and 4, who have acquired a portion of suit schedule property. 7. Heard the arguments on both sides and perused the entire appeal papers. 8. Trial Court held that defendant 1 has failed to prove and establish that plaintiff 3 was given in adoption to Rangegowda mainly on the ground that there is no pleading and evidence of giving and taking plaintiff 3 in adoption by conducting a ceremony called 'Dattaka Homa'. Though the Trial Court noticed the registered sale deed-Ex. D. 1 and registered settlement deed-Ex. D. 2, wherein there is a reference to the adoption of plaintiff 3 in favour of Rangegowda refused to rely upon the two documents on the ground that by consent of the parties, adoption cannot be created. It is necessary at this stage to notice the relevant provisions of law governing adoption among Hindus. Prior to the enactment of Hindu Adoptions and Maintenance Act, 1956 only boys can be given and taken in adoption and not the girls. Only husband can give and take a boy in adoption and not the wife. Any adoption of boy shall be among their own caste and not an outsider. With regard to ceremony of giving and taking the boy in adoption there was no uniform performance of 'Datta Homa'. There was no clarity and certainty with regard to vesting and diverting of any property of adoptive child resulting in many voluminous litigations. As an answer to some of these problems, the Parliament enacted the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act'). 9. Sections 5 to 17 in Chapter II of the Act deals with adoption. Section 6 specifies the requisite of a valid adoption. Section 7 specifies the capacity of a male Hindu and Section 8 specifies the capacity of female Hindu to take in adoption. 9. Sections 5 to 17 in Chapter II of the Act deals with adoption. Section 6 specifies the requisite of a valid adoption. Section 7 specifies the capacity of a male Hindu and Section 8 specifies the capacity of female Hindu to take in adoption. Section 9 specifies the persons capable of giving in adoption. Section 10 specifies persons, who may be adopted. Section 11 specifies the other condition for a valid adoption. Proviso to Section 11 of the Act, 1956 specifies that perform of 'Dattaka Homa' shall not be essential to the validity of adoption. Thus it is clear that even in the absence of proof of 'Dattaka Homa', there can be adoption subject to the satisfaction of other conditions under Sections 6 to 11 of the Act. Merely because there is no pleadings and proof relating to 'Dattaka Homa', it cannot be said that there is no valid adoption. The reasoning of the Trial Court that defendant 1 has failed to plead and prove the ceremony of'Dattaka Homa' and therefore there is no adoption of plaintiff 3 to Rangegowda, is unsustainable in law. 10. In the instant case, the adoptive father, Rangegowda, executed a registered settlement deed dated 20-11-1961-Ex. D. 2 in favour of plaintiff 3. In this registered settlement deed-Ex. D. 2, plaintiff 3 is described as adopted son of Rangegowda. Plaintiff 3 is a party to this registered settlement deed. Plaintiff 3, who is examined as P.W. 2, has not disputed the registered settlement deed-Ex. D. 2 wherein he was described as adopted son of Rangegowda. Further, on the strength of registered settlement deed-Ex. D. 2, plaintiff 3 sold a portion of property acquired by him under a registered sale deed dated 16-1-1970-Ex. D. 1 in favour of one Sri Rangappa. In this registered sale deed-Ex. D. 1, plaintiff 3 described himself as adoptive son of Rangegowda. These two registered documents-Exs. D.1 and D.2 have come into existence at the earliest point of time when there was no dispute between the parties on the question of division of schedule properties. Further, these two documents and the recitals contained therein are not disputed by any of the parties to the suit. In addition to these documentary evidence, plaintiff 3, who is examined as P.W. 2, in his deposition admitted that he was residing some time with Rangegowda. Further, these two documents and the recitals contained therein are not disputed by any of the parties to the suit. In addition to these documentary evidence, plaintiff 3, who is examined as P.W. 2, in his deposition admitted that he was residing some time with Rangegowda. Further it is admitted that Rangegowda did not had any children. Trial Court though noticed these documentary and oral evidence on record, committed an en-or in holding that adoption of plaintiff 3 is not proved and established. This admitted documentary and oral evidence on record clearly establishes the fact that plaintiff 3 is the adopted son of Rangegowda. On adoption, plaintiff 3 ceased to be the coparcener of joint family of his natural parents. Therefore, plaintiff 3 is not entitled for any share in the schedule properties belonging to the natural father, Lakkaiah. It is not the case of plaintiff 3 that the schedule property or any portion of it vested in him prior to his adoption to Rangegowda. Trial Court committed an en-or in passing the decree declaring that plaintiff 3 is entitled for 7/18th share in the schedule properties. 11. It is not in dispute that the schedule properties are the ancestral properties of common propositor, Lakkaiah. Plaintiffs contend that Lakkaiah died subsequent to the year 1956. Defendant 1 contends that his father, Lakkaiah died in the year 1955. But defendant 1 specifically admits in his evidence deposed on 7-8-1991 that his father, Lakkaiah, died 34 years back. On the basis of this admission, even according to defendant 1, his father, Lakkaiah, died in the year 1957. Further D.W. 2 in his evidence recorded on 7-8-1991 admits that common propositor, Lakkaiah, died 25 years back. P.W. I-wife of common propositor, Lakkaiah, in her deposition admitted that in the year 1959 her husband, Lakkaiah, died. Except this oral evidence on record, there is no other evidence to show that Lakkaiah died prior to the year 1955. Therefore, the available oral evidence on record clearly establishes the fact that the common propositor, Lakkaiah, died subsequent to coming into force of Hindu Succession Act, 1956. 12. Admittedly the schedule properties are the ancestral properties of common propositor, Lakkaiah. Since plaintiff was given in adoption to Rangegowda, he ceased to be the coparcener of joint family of Lakkaiah and defendant 1. 12. Admittedly the schedule properties are the ancestral properties of common propositor, Lakkaiah. Since plaintiff was given in adoption to Rangegowda, he ceased to be the coparcener of joint family of Lakkaiah and defendant 1. On a notional partition, Lakkaiah is entitled for half share and defendant 1 is entitled for the remaining half share in the schedule properties. On the demise of Lakkaiah, his half share in the schedule properties will devolve upon his wife and children except plaintiff 3. On this basis, the shares are to be worked out between the plaintiffs and defendants. 13. It is not in dispute that defendants 3 and 4 acquired a portion of schedule property under the Land Acquisition Act, 1894. Defendant 1 claiming to be the sole surviving coparcener has withdrawn the compensation awarded by the Land Acquisition Officer for acquiring a portion of schedule property. Under the impugned judgment and decree, Trial Court declared that the respective share holders are entitled to claim money from defendant 1 alone out of the compensation amount received by him from defendants 3 and 4. The grievance of plaintiff 3 in RF.A. No. 444 of 1999 is that he is entitled for the compensation awarded by the defendants 3 and 4, who are the acquiring authorities and a liability ought to have been fixed on them. Since we have held that plaintiff 3 is the adopted son of Rangegowda and ceases to be the member of joint family of common propositor, Lakkaiah and defendant 1, he will not get any share in the schedule properties and as such, his appeal is liable to be dismissed. Further in O.S. No. 75 of 1990, there is no prayer questioning the acquisition of a portion of schedule properties by defendants 3 and 4 nor the payment of compensation to defendant 1. In the absence of any prayer in the suit, it is not permissible under law to grant relief claimed by plaintiff 3 in his RF.A. No. 444 of 1999. On this ground also, the appeal filed by plaintiff 3 is liable to be dismissed. In the absence of any prayer in the suit, it is not permissible under law to grant relief claimed by plaintiff 3 in his RF.A. No. 444 of 1999. On this ground also, the appeal filed by plaintiff 3 is liable to be dismissed. For the reasons stated above, the following: ORDER (i) RF.A. No. 260 of 1994 is hereby allowed; (ii) RF.A. No. 444 of 1999 is hereby dismissed; (iii) The impugned judgment and decree dated 23-9-1993 in O.S. No. 75 of 1990 passed by the learned Civil Judge at Mysore, is hereby set aside; (iv) O.S. No. 75 of 1990 is decreed in part declaring that plaintiffs 1, 2 and 4 and defendant 2 are entitled for 1/10th share each and defendant 1 is entitled for 1/6th share in the schedule properties. Plaintiffs 1, 2, 4 and defendant 2 are entitled to workout their entitlement as per the declaration made above in the final decree proceedings including their share in the compensation amount in the hands of defendant 1. Ordered accordingly.