Karnataka High Court
Shivaranappa vs Sangameshwar on 21 October, 2011
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
1
IN THE HIGH COURT OF KARNAT
AKA
CIRCUIT BENCH AT GULBARGA
Dated this the 21st day of October, 201
1
BEFORE:
THE HON'BLE MR JUSTICE D V SH
YLENDRA KUMAR
Regular First Appeal No 1706 of 200
5 [PAR]
BETWEEN:
SHIVASHARANAPPA
Sb REVAPPA BHAKARE
AGE: 55 YEARS
0CC: AGRICULTURIST
R/O SARASAMBA VILLAGE
TQ: ALAND
DIST: GULBARGA
2. RAMESH
Sb SHIVASHARANAPPA BHAKARE
AGE: 36 YEARS
0CC: AGRICULTURIST
R/O SARASAMBA VILLAGE
TQ: ALAND
DIST: GULBARGA
3. CHANDRAKANT
Sb SHIVASHARANAPPA BHAKARE
AGE: 33 YEARS
0CC: AGRICULTURIST
R/O SARASAMBA VILLAGE
TQ: ALAND
DIST: GULBARGA
4. SURESH
Sb SHIVASHARANAPPA BHAKAR
E
AGE: 28 YEARS
0CC: AGRICULTURIST
R/O SARASAMBA VILLAGE
2
'1: ALAND
DIST: GULBARGA
... APPELLANTS
[By M/s A M Nagaral & An
anth Jahagirdar, Advs for
M/s Basavaprabhu S PaUl & Ass
AND: ociatesi
SANGAMESHWAR
ADOPTED S/O CHANDANNA BAK
ARE
AGE: 19 YEARS
0CC: AGRICULTURIST
R/O SARASAMBA VILLAGE
TQ: ALAND, DIST: GULBARGA
-585 105
2. NILABAI
W/ 0 CHANDANA BAKARE
AGE: 80 YEARS
0CC: AGRICULTURIST
RIO SARASAMBA VILLAGE
TQ: ALAND
DIST:GULBARGA-585 105
3. SUVARNA
W/0 SHIVAKUMAR MANASE
AGE: 33 YEARS
0CC: HOUSEHOLD
R/O H.N0.86/216
MAD DIVASTHI BHAVANI PET
H
NEAR DATI'A MANDIR
SOLAPUR-413 002
4. SUGALABAI
W/O GURLINGAPPA DHOTRE
AGE: MAJOR, 0CC: HOUSEHOL
D
R/O H.NO.86/216
MADDIVASTHI BHAVANI PET
H
NEAR DAYI'A MANDIR
SOLAPUR-413 002
5. SHANTABAI
W/O GURLINGAPPA DHOThE
AGE: MAJOR
0CC: HOUSEHOLD
R/O SARASAMBA VILLAGE
3
TQ: ALAND
DIST:GULBARGA585 105
6. KASHINATH
S/0 AMRUT
AGE: MAJOR,
0CC: AGRICULTURIST
R/ 0 KHARAT VILLAGE
TQ: CHINCHOLLI
DIST:GULBARGA-585 105
7. MALLINATH
S/O AMRUT
AGE: MAJOR
0CC: AGRICULTURIST
R/O KHARAT VILLAGE
TQ: CHINCHOLLI,
DIST: GULBARGA-585 105
8. BASAWANTRAYA
Sb AMRUT
AGE: MAJOR
0CC: AGRICULTURIST
R/ 0 KHARAT VILLAGE
TQ: CHINCHOLLI,
DIST: GULBARGA-585 105
9. HANUMANTHRAYA
5/0 AMRUT
AGE: MAJOR
0CC: AGRICULTURIST
R/O KHAHAT VILLAGE
TQ: CHINCHOLLI
DIST: GULBARGA-585 105
10. PANDITRAO
Sb AMRUT
AGE: MAJOR
0CC: AGRICULTURIST
R/O KHARAT VILLAGE
TQ: CHINCHOLLI
DIST: GULBARGA-585 105
4
11. ANNEPPA
Sb AMRUT
AGE: MAJOR
0CC: AGRICULTURIST
R/O KHARAT VILLAGE
TQ: CHINCHOLLI
DIST: GULBARGA585 105
12. SHARANAMMA
W/O SHIVAJI
AGE: MAJOR
0CC: HOUSEHOLD
R/ 0 KHARAT VILLAGE
TQ: CHINCHOLLI
DIST: GULBARGA-585 105
13. ANNAPPA
Sb MALLJKARJUN WALE
AGE: MAJOR
0CC: AGRICULTURIST
R/O NANDGAON VILLAGE
TQ: TULJAPUR
DIST: OSMANABAD
STATE: MAHARASHTRA
14. SHANKAR
Sb MALLIKARJUN WALE
AGE: MAJOR
0CC: AGRICULTURIST
R/O NANDGAON VILLAGE
TQ: TUUJAPUR
DIST: OSMANABAD
STATE: MAHARASHTRA.
15. GURUBAI
W/O SHANKAR WALE
AGE: MAJOR
0CC: AGRICULTURIST
R/o NANDGAON VILLAGE
TQ: TULJAPUR
DIST: OSMANABAD
STATE: MAHARASHTRA.
5
16. BASANNA
5/0 REVANNASIDDAPPA GANAPKfl
AGE: MAJOR
0CC: AGRICULTURIST
R/O KADAGANCHI VILLAGE
TQ: ALAND, DIST: GULBARGA-585 105
17. MALLINATH
Sb REVANNASIDDAPPA GANAPATI
AGE: MAJOR
0CC: AGRICULTURIST
R/O KADAGANCHI VILLAGE
TQ: ALAND
DIST:GULBARGA-585 105
... RESPONDENTh
(By M/s I R Biradar, G G Chagashetty
& Laxmikanth
TPujari,AdvsforR3to11,R-16
&17;M/sPN
Shaha, S M Chandrashekar, B J Bhusare
&
B VJalde, Advs. for R-1 & 2)
THIS RFA IS FILED U/S 96 R/W ORD
ER 41 RULE 1 OF CPC
AGAINST ThE JUDGMENT AND
DECREE DATED: 19.10.2005
PASSED IN 0.S. NO. 116/03 ON THE
FILE OF PRL. CIVIL JUDGE
(SR.DN) ALAND DECREEING THE
SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR DISP
OSAL THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This Regular First Appeal under Section 96 of Code of Civil Procedure is by the def endants 1 to 4 in OS No 116 of 2003, on the file of Civil Judge (Sr Dn), Aland [originally numbered as OS No 378 of 2001, on the file of 6 Addi Civil Judge (Sr Dn), Gulbarga, whi ch had been later transferred to the court of Civil Judge (Sr Dn). At Aland and renumbered as OS No 116 of 20031, and directed against the judgment and decree dated 19-10-2005 passed in the suit, a suit for partition ofjoint fam ily properties and the plaintiffs, numbering two -- mother and her adopted son together having claimed half share in the suit
-
schedule properties and the suit having been decreed in terms of the prayer in the plaint, though some minor variations regarding the inter se sha ring amongst the plaintiffs and the 19" defendant, who is the daughter of second plaintiff.
2. For the sake of convenience, the parties will be referred to in their respective ranks in the suit.
3. Defendants 1 to 4, who had contested the suit and who are heirs of the brother of the hus band of the second plaintiff, who had instituted the suit in her status as widow of one Chandanna Bhakare and defendants 1 to 4 7 being grandchildren of Revappa Bhakar e - brother of Chandanna. Defendants 1 to 4 have contended that the judgment and decree passed by the tria l court is not sustainable in law; that there have been erro rs of not only questions of law but also the manner in whi ch evidence on record has been appreciated: that when there was basic dispute even with regard to the status of the second plaintiff to be the widow of Chandanna
-- a member of the joint family and further dispute as regards the firs t
--
plaintiff being the adopted son of second plaintiff and more so when the first plaintiff at the time of adoption in the year 200L even as claimed by the plai ntiffs, was much more than 15 years of age and therefo re the trial court could not have accepted it as a valid ado ption in the wake of the provisions of Section 1O(iv) of the Hindu Adoption & Maintenance Act, 1956 Ifor short, the Adoption Act]; that even when the plaintiffs were not enti tled to any share at all in the joint family properties of Revappa and Chandanna, the trial court decreeing the suit is a grave 8 error in law and therefore calls for interfer ence, appeal is to be allowed and the suit dismissed etc.
4. Brief facts leading to filing of the suit, as per the plaint averments, are that: One Shivalingappa, who was the propositor of the family, had one dau ghter Kallavva and three sons -- Sidram, Revanna and Chandanna; that the said propositor Shivalingappa died in the year 1910, his first son Sidram died in the year 1940 without any issues, daughter Kallavva had been married to Mallikarjun, who had two sons and daughter Neelabai:
that the said Neelabai is the second plai ntiff and had been given in marriage to Chandanna, after his first wife Chandavva deserted him and married another person namely Anneppa Mudukanna and had live d separately and after the marriage of Neelabai with Cha ndanna, they had a daughter by name Gurubai; that her hus band Chandanna died in the year 1950 or 1954; that after the death of Chandanna, Neelabai continued to resi de in the family 9 house of Bhakare family and was being take n care of her brother-in-law Revanna -- elder brother of Chandanna; that Revanna also died on 26-1-1993, whereafter Reva ppa's son Shivasharanappa started troubling and harassing the second plaintiff Neelabai and ultimately driving her to seek shelter in her matrimonial house; that her daughter Gurubai had been given in marriage to 16th defendant Shankar son of Kallavva; that the second plaintif f
-
adopted the first plaintiff for continuation of the lineage etc., after observing necessary procedure in this regard;
that the adoption took place on 10-6-2001 in the presence of relatives, elders in the family and a swamiji, at Nandagaon village in Tuljapur taluk of Ma harashtra, the maternal home of Neelabai and thereaft er in spite of the demands of plaintiffs for their legitimate sha re i.e. share of Chandanna in the joint family proper ties, defendants, particularly defendants 1 to 4, who were in the possession and vahivat of the properties did not oblig e and therefore the suit was laid seeking for partition and separate k 10 possession of the plaintiffs share in the joint family properties.
5. The following family tree gives a better picture of the relationship of the parties as claimed by the plai ntiffs:
Shivalingappa I3hakare V
1) Kallawwa 2) Revappa 3) Chandanna Bhimbai Nee abai
1) Anneppa + (wife) (wife)" plff. -2
2) Shankar V Gurubai (wife) Gurubal Sangameshwar w/o Shankar (Adopted son) deft.-17 Puff-i
1) Gatgabai 2) Sua1abai 3) Shan±bai 4) Shivasaranappa-D1 (Expired) Kashinath Mallinath Baswanthraya Hanarnan thraya Panditrao Annappa Shanamma Ramesh Chandrakant Suvarna Sure
6. There were as many as 19 defendants to the suit.
Defendants 1 to 4 as described above, fifth def endant being daughter of first defendant, defendants 6 and 7 being daughters of Revappa i.e. sisters of first defendant, 11 defendants 8 to 14 behig children to Gurubai w/o Amruth
- another sister of the first defendant; defendants 15 and 16 being sons of Kallavva i.e. brothers of second plaintiff;
defendants 17 beIng daughter of second plaintif f Neelabai and Chandanna and 18th and 19th defendants being children of Thayavva w/o Revanasiddappa Gan apathi, who In turn is daughter of Sharanavva d/o firs t wife of Shlvallngappa, the propositor.
7. While defendants 1 to 5 contested the suit clai m and filed common written statement, defendants 16 and 17 supported the case of the plaintiffs and ified a separate written statement and In fact Gurubal whi le did not opposed the grant of a decree, sought for giving her whatever share she Is legitimately entitled to.
8. Defendants 1 to 5 In the written statement in the first Instance denied the relationship, pleading that the plaintiffs are not In any way related to the family of Bhakare, except Neelabal was the daughter of Kallavva, 12 one daughter of Shivalingappa to his second wife, but Neelabai was never married to Charidanna and therefore she is not entitled to any share nor any person/s claiming under Neelabai or as a person taken in adoption by Neelabai i.e. first plaintiff, who is claimed to hav e taken in adoption by the second plaintiff and therefore plea ded that the plaintiffs have no manner of right, interest or title in any of the suit schedule properties and sought for dismissal of the suit with costs etc.
9. Contesting defendants has a safety valve also, pleaded that the prior partition had taken plac e between Revappa and the first defendant Shivasharana ppa - father and son -- during the year 1982; that assuming for argument's sake that Chandanna had take n the first plaintiff in adoption in the year 2001, that cannot make any difference to the earlier partition and therefore the plaintiffs cannot lay claim to any of the suit schedule properties 13
10. Contesting defendants also pleaded that even assuming that Neelabai had married Chandanna. Chandanna himself having died prior to the Hindu Succession Act, 1956 [for short, the Succes sion Acti and no partition having taken place during the lifetime of Chandanna, on his death, no right enured in favour of second plaintiff; that she was not possessed any properties of the family in her capacity as widow of a member of coparcenary and therefore she was not entitled to claim a share in the properties by filing a suit in the year 2001 and therefore also the suit is liable to be dismisse d.
11. Defendants 16 and 17 in their separate common written statement fully supported the case of the plaintiffs.
All averments in the plaint were admitted and supported.
It is also pleaded that after the death of Cha ndanna, his other brother Revappa had taken care of sec ond plaintiff and that Revappa performed the marriage of 1 7th defendant during his life time; that these def endants being 4 14 granddaughters of propositor Shivalingappa being grandsons of Shivalingappa's daugther Kallaww a and 1 7th defendant Gurubai being granddaughter of propositor through his son Chandanna, whom Neelaba i married and therefore while the plaintiffs may be given thei r share as per law, these defendants also should be given their legitimate share in accordance with law from out of the joint family properties and they be put in possession thereof also.
12. In the wake of such dispute arising out of the pleadings, the learned judge of the trial cou rt framed the following issues:
1. Whether the plaintiffs prove the correctness of the description of the suit properties?
2. Whether the plaintiffs prove the correctness of the genealogy annexed to the plaint?
3. Whether the plaintiffs prove that plaintiff No.2 is the legally wedded wfe of deceased Chandanna?15
4. Whether the plain t(fs prove that defendant No-i 7 Gurubai is the daughter of said deceased Chandanna?
5. Whether the plain tfs prove that plaintiff No-2 Neelabai was having pre-existing right of maintenance over the suit properties?
6. Whether the plain tff proves that plaintiff No-i is the adopted son of the plaint{ff No- 2 and deceased Chandanna?
7. Whether the plaintiffs prove that Shivalingappa Bhakare is the common ancestor for the plaintiffs and defendants?
8. Whether the plaintiffs prove that all the suit properties shown in the schedule are joint and ancestral properties of plaintiffs and defendants?
9. Whether the defendant No-i proves that already there was took partition in the year 1982 and in the said partition the properties shown in. para 12 of the written statement have fallen to his share?
10. Whether the defendant No-i proves that suit land Sy.No-130/1 measuring 10 acres 5 guntas and Sy.No.254/3 measuring 4 acres of Sarsamba village are his sef acquired properties?
ii. Whether the suit of the plaintiff is barred by law qf limitation?
1612, Whether the plaintTs are entitled to parti:tion and separate possession in the suit properties? if so, to what share?
13. Whether the plaintjjs prove that they are in. joint possession. of the suit properties along with defendants?
/4. Whether the suit valuation. shown by the plaintffs is proper and correct?
15. Whether the court fee paid by the plaintffs is proper and correct?
16. Whether the plaintffs prove that there arose a cause of action to file this suit against defendants?
17. Whether the plaintfj's are entitled to the relief of a partition and separate possession in the suit properties as prayed for?
18. What decree or order?
13. Parties went on trial on such issues. On behalf of the plaintiffs, first plaintiff deposed as PW4, second plaintiff deposed as PW 1, apart from the second husband of first wife of Chandanna by name Bhimra o Mudukanna as PW6 and three other witnesses, suppor ting the plaintiff.
17Documentary evidence comprises of ExP1 to 14.
ExP1 being school transfer certificate in the name of Gurubai dated 11-1 1-2003, wherein it had been described as she is daughter of Chandanna; ExP2 being adoption deed dated 10-6-2001 evidencing first plaintiff being taken on adoption by the second plaintiff; ExP3 being positive photograph of adoption ceremonies; ExP4 to 11 being extracts of records of rights in respect of suit schedule properties; and ExP12 to 14 being demand extra cts issued by the gram panchayat concerned.
14. On behalf of defendants, first defendant deposed as DW1 and though 16tI defendant deposed as DW6 , he only supported the case of the plaintiffs. 17t11 defendant Gurubai deposed as DW7, also only to support the case of the plaintiffs. Five other witnesses had been examined by the defendants in support of their case. Documentary evidence exhibited on behalf of the defendants are ExD 1 to 39. ExD 1 to 26 are all extracts of record of rights in • 18 respect of various landed properties, which are In MaraUd language and their English translations, ExD27 and 28 being sale deeds dated 5-5-1981 and 10-5-193 respectively; ExP28 being certified copy of the decree In OS No 247 of 1993; ExD31 being another original sale deed 19th Khurud 1354 Fasli In Urdu language along with a map; ExP32 being Its translation; and ExP33 to 39 beIng receipts In Urdu language and their English translations.
15. The trial court, purporting to appreciate the oral and documentary evidence placed before It, answered Issues 1 to 8 In favour of plaintiffs, holding that they have proved their case, and answered Issues 9 to 11 In the negative -
Issues 9 and 10, where the burden was on the defendants and issue No 11 being the question of limitation as to whether the suit was barred by limitation, and therefore holding that the plaintiffs were entitled to partition and separate possession being In joint possession of the suit schedule properties. The trial court also held that the 19 valuation is correct and so also the court fee paid and that the plaintiffs had a legitimate cause to sue, proceeded to decree the suit, holding that the plaintiffs and the 1 7tIi defendant together are entitled to half share in the suit schedule properties and are entitled to claim for division of their share by metes and bounds. It is challenging this judgment and decree of the trial court, the present appeal.
16. Defendants 1 to 4 - appellants herein -- have urged in the appeal that the judgment and decree is not sustainable; that the trial court has committed a grea t error in not considering the admissions of the plaintiffs and their witnesses, which demonstrate that the plaintiffs are not entitled for any share and having not demanded for it in the past over 50 years and the suit filed after lapse of 50 years from the death of Chandanna, should have been dismissed as barred by limitation; that the learned judg e of the trial court was in error in assuming that the defendants had not disputed the relationship amongst the 20 parties, even when it was the case of the contesting defendants that second plaintiff and 17th defendant were never members of joint family nor were they entitled to claim any share in the suit schedule properties and even disputed the very marriage of Neelabai with Chandanna, which was never made good by the plaintiffs before the court below, decreeing the suit that too by invoking the provisions of Section 14 of the Succession Act is a clear illegality in law; that the plaintiffs themselves having pleaded that Chandanna had died prior to the coming into force of Succession Act and as per the customary Hindu law, after the death of Chandanna, there being only one coparcenar surviving in the family namely Revappa, he had inherited the entire family properties and had become the absolute owner thereof and even assuming for argument's sake that Neelabaj was wife of late Chandanna. she would, at the best, can claim only maintenance and nothing more, more so when Neelabai had specifically failed to prove that she was in possession of any of the suit schedule 21 properties nor any properties had been given to her exclusively for the purpose of her maintenance and in such state of factual situation, provisions of Section 14 of the Succession Act was never attracted and therefore the judgment and decree of the court below requires to be set aside and the suit dismissed etc.
17. I have heard Sri M/s A M Nagaral and Ananth Jahagirdar, learned counsel for the appellants-defenda nts 1 to 4 and Sri P N Shah along with M/s I R Bira dar, G G Chagashetty, B V Jalde, R J Bhusare, S M Chandrash ekar, learned counsel for respondents 1 and 2 and Sri Laxmikanth T Pujari, learned counsel for the respo ndents 3 to 11 and 16 and 17.
18. Sri A M Nagaral has mainly urged that the suit is barred by limitation; that the plaintiffs had not mad e good on available evidence that she was the legally wedd ed wife of Chandanna; that the plaintiffs had also not mad e good that the first plaintiff had been taken in a valid adop tion by 22 Neelabai as the widow of late Chandanna; that the suit items 1 and 2, both landed properties, were self-acquired proeprties of one of the sons of Revappa and therefore not to be added to the common hotchpotch; that admitted factum of first plaintiff being 17 years of age at the time of adoption in the year 2001, clearly invalidates the adoption, assuming that factually adoption has taken place: that such adoption is also hit by the provisions of Section 1 0(iv) of the Adoption Act, being beyond the age of 15 years at the time of adoption and the plaintiffs having not pleaded any special custom to get over the statutory bar, adoption is even otherwise invalidated; that the learned judge of the trial court has totally gone wrong in not only assuming that the provisions of the Hindu Women's Right to Property Act, 1937 [for short, 1937 Act], enabled the second plaintiff to sue for partition in respect of the share to which her husband Chandanna was entitled to in the suit schedule properties, as the 1937 Act was never in operation in the erstwhile Hyderabad state ruled by Nizams; that when the 23 provisions of the Succession Act came into effect on and after 17-6-1956. the second plaintiff being not possessed of any property of the family, there is absolutely no scop e for applying the provisions of Section 14(1) to hold that her right of maintenance blossomed into a full property right to claim a share by partition of the family properties neve r arose.
19. In support of such submissions, learned counsel for the appellants-defendants 1 to 4 have relied on the following decisions:
a) Decision of the Supreme Court in the case of SATRUGHAN vs SABUJPARI fAIR 1967 SC 272] with regard to the status and rights of a Hindu wido w vis-à-vis family properties. who had acquired som e right or interest under the 1937 Act and had soug ht to enforce that right by demand partition and the effect of demanding partition etc.
b) In support of the submission that there was no valid adoption and the plaintiffs have failed to plead and 24 prove any specific custom prevailing in the family to claim an exception in terms of Section 1O(iv) of the Adoption Act, Sri Nagaral has placed strong reliance on the decision of the Supreme Court in the case of BIIIMASBYA vs JA1VABI ((2006) 13 SCC 6271
c) Sri Nagaral has also placed reliance on the jud gment of a division bench of this court in the case of SHIVALINGAPA vs GOURAVVA (ILR 1988 kar 19331 to contend that unless a member of a Hin du family was in possession of some property at the time Succession Act came into force. Benefit of Section 14(1) does not enure to such a member.
20. However, Sri Nagaral, learned counsel for the appellants, fairly submits that the amendm ent effected to the Succession Act, particularly the amendm ent to Section 6 as per the Central Act No 39 of 200 5, conferring coparcenary rights in favour of daughters in joint family, if is also applicable for effecting a partitio n of the suit 25 schedule properties on the premise that they are all joint family properties and that the 1 7th defendant Gurubai is daughter of Chandanna and assuming if the plaintiffs are successful in establishing the marriage of Neelabai and Chandanna, then Gurubai can claim a share as a coparcenar, irrespective of the plaintiffs' establishing valid adoption of first plaintiff by Neelabai in the year 2001 etc.
21. On behalf of plaintiffs-respondents, submission of Sri P N Shaha is that there is much evidence to probablize the factum of marriage of second plaintiff Neelabai with Chandanna and in this regard has drawn attention to ExP 1 -- school leaving certificate of Gurubai indicating that her father is ChandappaBhakare. Attention is also drawn to the deposition of PW1, who has spoken abou t her marriage with Chandanna, her residence in Sars amba village and circumstances under which she was force d to leave her husband's house and take shelter in her mothers house at Nandgaon village, and the evidence of 26 PW5, a resident of Sarsamba village, who had seen seco nd plaintiff living as her neighbour and wife of Chandann a, and also the evidence of PW6, second husband of first wife of Chandanna, who has spoken not only abou t the separation of Chandanna's first wife from Chandann a and PW6 had married that lady and also that to his know ledge Neelabai had married Chandanna later.
22. It is also submitted that as per the customary law, widow of a coparcenar is entitled to take in adop tion an heir and the date of adoption relates back to the date of death of member of the joint family and the adop tion is deemed to be by member of the joint family etc., the adoption is also proved on the available evidence befo re the court and in this regard has drawn my attention to ExP2 and 3 and also deposition of PWs 2 to 4, apart from the deposition of DWs 2, 3 and 4.
23. Sri Shaha also submitted that a female Hindu with limited estate which was available to the second plaintiff 27 under the provisions of the 1937 Act, as when Chandanna died in the year 1954, this Act was in force even in the erstwhile Hyderabad state and therefore she was entitled to sue for partition of her share and the moment demand is made for partition, share becomes defined and in terms of Section 14, the earlier limited estate can be claim ed as full estate.
24. In support of the submission that even when a situation where there was sole surviving copa rcenar in a family and in the event of widow of other coparcen ar taking in adoption any person, they can sue for partition after the adoption for the share of her husband and that it is quite valid in law, reliance is placed on the decis ion of the Supreme Court in the case of D S AGALAV E vs P M AGALAVE fAIR 1988 SC 8451. Therefore, Sri Shaha submits that the learned judge of the trial cour t is fully justified in decreeing the suit and the judgment and decree 28 of the court below does not call for any interference and the appeal is to be dismissed etc.
25. Sri Shaha also submits that in the wake of 2005 amendment to Section 6 of the Succession Act, irrespecti ve of the adoption being valid or otherwise, the legal position in so far as the suit schedule properties are concerned is that Gurubal as a coparcenar and being daughter of Chandanna, will become entitled to half share in the suit schedule properties and the other half share, to be share d amongst all heirs of his other brother who survived him viz., Revappa and therefore submits that giving half share to the plaintiffs and the 1 7t1i defendant together cannot be said to have in any way reduced the share of the defendants and therefore the appeal is even otherwise also to be dismissed, as law as per Section 6 of the Hind u Succession Act, 1956 as of now, has to be applied whil e disposing of this appeal and therefore also the judgment and decree does not call for interference.
>6 29
26. In the wake of the grounds urged in this appeal and contentions raised on behalf of the appellants and the respondents, the following points arise for determina tion:
LI Whether the answer of the learned judge of the trial court on the issues relating to second plaintfjs right as widow of deceased coparcenar in the joint family, is sustainable or calls for interference?
ii) Whether the learned judge of the trial court was right in answering the issue relating to adoption of the first plaintiff by the second plaintiff in the affirmative or calls for any correction?
iii) Whether the court below is justified in hold ing that the suit is not barred by limitation?
iv) Whether the second plaintiff had acquired rights under the 1937 Act and further as to whether the provisions of Section 14 of this Act were attracted in respect of any pre-existing right and the limited estate into corresponding full ownership rights?
v) Whether the allotment of ha4f share in favour of plaintiffs and 1 7th defendant put together calls for any correction?30
27. In so far as the point relating to factum of marriage of Neelabai and Chandanna is concerned, there is ample material on record apart from ExP 1 in the form of oral testimony of PWs 1 to 3 and 6, who have deposed about the awareness of one Chandamma being earlier wife of Chandanna and later she left him and Chandann a having married Neelabai.
28. Though Sri A M Nagaral and Sri Ananth Jahagirda r, learned counsel for the appellants have urged that evidence on record in this aspect is not one to establish cogently the factum of marriage of Neelabai and Chandanna, the degree of proof required in a matt er of this nature and at a point of time which is more than 50 years after the marriage, is not one as that of a marr iage that has taken place recently and the factum that many residents of the village have spoken about Chandann a and Neelabai having lived like a couple, a factum whic h is not disputed by the defendants 1 to 4 that Neelabai was all 'V 31 along living in the family house of Bbakare till the year 1993 or a few years thereafter till she was forced to leave the family house and join her mother's place at Nandagaon and the fact that Revappa had perfonned the marriage of Gurubal, who Is admitted to be daughter of Neelabai, after the death of Chandanna, all goes to show that Neelabal and Chandanna had lived as man and wife and Neelabal being none other than the daughter of Fnflnvva, Chandanna's sister ICsdlsivva and no one having spoken either In the examination-In-chief or In the cross-
examination about Neelabai being married to any other person, it Is, In my considered opinion, good and strong enough an evidence to accept that Neelabai was the wife of Chandanna.
29. Insofarasthe applicability of the 1937 Act and the consequences upon Succession Act coming Into force thereafter In respect of rights of Hindu widows In joint family properties, Is concerned, It is very clear that the 32 provisions of this Act definitely creates a right in favour of a widow of a coparcenar to claim as a mat ter of right an interest in the share that was due to her husband as a coparcenar. and Section 9 of this Act also gives an authority to such widow to adopt a son to the deceased husband.
30. On the authority of the law as stated by the Supreme Court in the case of SATRUGHAN [supra] relied upon by Sri A M Nagaral. learned counsel for the appellant, it is clear that a Hindu woman's right given in the 1937 Act and on the widow claiming partition in respect of such share of her husband, that interest gets defined and even before effecting partition by metes and bounds, and such interest does not revert to other coparce ners by devolution but thereafter goes by succession to the heirs of her husband is a clear authority to hold that the widow is fully entitled to the share of her husband in the joint family 33 property and is taken out of the reach of other coparceners, once partition is demanded.
31. Even the judgment of the Supreme Court in the case of D S AGALAVE [supral, fully supports the case of the plaintiffs for claiming a share even by the widow and for negativing the defence taken by the defendants 1 to 4 that on the death of Chandanna and with Revappa bein g the sole surviving coparcenar, all properties reverted to him and he became the absolute owner thereof and on the strength of this authority of the Supreme Court in the case of D S AGALAVE [supra], the trial court has right ly held that the suit schedule properties do not beco me the absolute properties of sole surviving coparcenar and the widow Neelabai was entitled to demand a share and seek for partition of her husband's half share in the prop erties.
32. Insofar as submission of Sri. Nagarale, learned counsel for the appellants based on the Judgmen t of the division Bench of this court in the case of 34 'SHIVALINGAPPA v. GOURAVVA' reported in ILR 1988 KAR 1933 is concerned, while the legal position is indicated in this Judgment, namely. that unless a widow had an independent interest representing her right of maintenance and had remained so not only at the time of the 1937 Act coming into force, but also remaining so when the Hindu Succession Act, 1956 became oper ative for section 14 of the Succession Act to enlarge the limited estate of the widow into a full estate and conferring on her absolute rights in respect of the subject property, this question does not arise in the present appeal and more so, there being no conflict of interest between the adop ting mother and the adopted son as was the case in the Judgment of this court in Sill ALINGAPPA's case [sup ra], but in fact there is unity of interest between these two persons in the present case as the first plaintiff is the adopted son and second plaintiff is adopting mother and both have a share in the family property of whic h the father of the first plaintiff and husband of the seco nd 1
8. 35 plaintiff, namely, Chandanna was member and there fore there Is unity of Interest and no conflict and the said Judgment Is clearly distinguishable on facts of the present case.
33. In so far as the point relating to limitation Is concerned, the feeble defence of the defendants 1 to 4 that there was a prior partition In the year 1983 between the first defendant and his father being neither made good on record nor having any consequence on the legal position, as It was no partition in the eye of law, as by that time the Succession Act had come into force following the 1937 Act and the fact that the second plaintiff was a mem ber of the joint family can never be Ignored and therefore such partition in any manner Is of no consequence in so far as the plaintiffs claim was concerned.
34. Even the contention on behalf of the defendants that some of the suit schedule properties were self-
acquired properties of one of the defendants Is also not of much 36 significance, as all other properties admittedly were of the joint family and there being independent inco me, they are also joint family properties, which is further augmented and has paved way for acquisition of other properties and therefore all suit schedule properties get into the ambit of joint family properties and therefore if ther e is a partition, all the suit schedule properties are require d to be shared.
With there being no prior partition, the question of limitation does not arise, as a partition can take place at any point of time so long as the family is join t.
35. In so far as the adoption is concerned, whil e there is some reliable evidence on record, a que stion whether a customary law of adoption of a person beyo nd the age of 15 years has been pleaded and proved, as urg ed by Sri A M Nagaral, learned counsel for the appella nts, by placing reliance on the decision of the Supreme Cou rt in the case of BHIMASHYA [supra], is concerned, I am of the view that a judgment of the Bombay High Court in the case of 37 HANMANT LAXMAN SALUNKE vs SRIRANG NARAYAN KANSE fAIR 2006 BOMBAY 123] is nearer home to the situation on hand, particularly as the parties who, though claimed as Hindus and joint family status and all, are not necessarily governed by strict Hindu law concept of adoption and need for adoption to not only continue the family but also for offering oblation to the ancestors. In the present situation of facts and having regard to the customs to which the parties are accustomed to, there is no practice of offering oblation, in the sense, a pious obligation and the adoption is more for pro viding a heir to the property of the share of the deceased coparcenar. A learned Single Judge of the Bombay High Court has aptly summed up the situation prevailing in the area, which practice is very much prevalent amongst the parties to this case and the place, though, is known as form er Hyderabad state, the customs and practices that are prevailing amongst Hindus living in this area are mo re governed by the customs and practices that had pre vailed in the 38 neighbouring State of Maharashtra amongst people belonging to the very community etc. Though a distinction is sought to be made by the learned counsel for the appellants on the ground that in the Bombay High Court case, parties were Marathis and were governed by a different custom etc., significance is that all these communities, whether Marathis or Lingayats, as per the customary Hindu Law and the clasification of varnas therein, they are all classified as Sudras and in the Veerashaiva communities adherence or observance of pious obligations are not strictly operative in respect of all classes of communities.
36. Here a little elaboration of the single Bench decision of the Bombay High Court in IIANMANT LAXTPL4N SALUNKE's case [supra], will be useful.
37. In this decision, the learned single Judge of the Bombay High Court, following the view taken by the full Bench of the same High Court earlier in the case of
4..
39'ANIRUDH JAGDERAO v. BABARAO IRBAJI' reported in AIR 1983 BOMBAY 391 and following the view expressed in the case of 'KONDIBA RAMA PAPAL v. NARAYAN KONDIBA PAPAL' reported in AIR 1991 SC 1180 abou t the particular custom of adopting a person who is already married and who is aged above fifteen years being prevalent in some sections of Hindu Community residing in the geographical area known as Marathwada area to which very area the present litigants' family also belongs to and which was clearly contrary to the requirements of section 10 of the Hindu Adoptions and Maintenance Act, 1956, held that the existence of such a variation in the customs of the local Hindus can be taken judicial notice of and therefore an argument that in the absence of a plea regarding existence of such a custom in the commun ity, having been taken at the earliest point of time recedes to the background. The fact situation in the present case on , this aspect of legal position being identical with the fact situation as had been noticed in the Full Bench decision of 40 the Bombay High Court and therefore this situation is distinguishable from the case decided by the Supreme Court and relied upon by Sri. Nagarale, learned counsel for the appellants in the case of BfflMASBYA [supra] and is of no avail on the facts of the present case.
38. The Bombay High Court to make an emphatic statement of the legal position regarding the validity of adoptions, particularly, for taking judicial notice of such practice being prevalent, had in turn relied upon a seven Judge Bench of the Hyderabad High Court of Old Nizam State in the case of 'SHESHADRI v VENUBAI reported in 37 DECCAN LAW REPORTS 244 decided on 1355 Fasli [1945-46 A.D.].
39. In fact, the full Bench of the Bombay High Court has expressed as in paragraph- 14 of the Judgment in ANIRUDH's case [supral that the entire text of the Judgment though was in Urdu, with all the learned counsel appearing for the parties in that case before the 41 Bombay High Court being conversant with Urdu language had apprised the court the contents and that learned counsel unanimously expressed that majority opinion in the Hyderabad Seven Judges Bench Judgment took the view that in Maratwada area of the Nizam State of Hyderabad, adoption of a married person was valid and that Hindus in Maratwada area were governed by Mayukha and not Mithakshara school of Hindu Law. Another decision rendered by the judicial committee of Nizam State of Hyderabad in the case of 'SAMBHAJI v. IL4JVAMANTA' reported in 34 DECCAN LAW REPORTS 664 to the effec t that Hindus in the Maratwada area were governed by Mayukha School of Hindu Law or Customs and not by the Mithakshara and it is based on these two relevant and clinching authorities elucidating the customary law in Maratwada area, the Bombay High Court had taken the view that it constitutes a clear exception for the mandate of law in terms of clauses [3] and [41 of section 10 of the Hindu Adoption and Maintenance Act, 1956.
4240. While this court would like to deal wit h another argument addressed by Sri. Nagarale, lear ned counsel for the appellants to the effect that in the par ticular area while the Mysore Hindu Law Women's Rights Act, 1933 was not applicable, operative as it was not part of the erstwhile State of Mysore and even the Hindu Wo men's rights to Property Act, 1937 under which widow's estate gets enlarged as the widow of Chandanna, namely, second plaintiff Neelabai could have claimed any right, title and interest to the subject property only under one of these two enactments for claiming her right in resp ect of half share of Chandanna from out of the family properties, the Central Act also did not apply to the erst while State of Nizam of Hyderabad and therefore the widow of Chandanna could not succeed to his estate etc., this argument overlooks the fact that Neelaba i is the second plaintiff and while as of flOW she can definitely claim such rights which not only the 1937 Act gives her but also Hindu Succession Act, 1956 for the reas on that on and c4
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43after the erstwhile State of Hyderabad was annexed to the Indian Union after the Razakafs action in the year 1948, all central laws have been extended to this area by the subsequent Central Enactment whereby all exist ing central acts were extended to the geographical area that was the erstwhile Nizam State of Hyderabad. It is therefore that while adoption cannot be held to be invalid, even the right of second plaintiff as was available or created under the Hindu Womens' Right to Property Act, 1937 , exists and survives for enforcement.
41. Significance of adoption being valid or othe rwise recedes to background, when the present legal position is examined, particularly for the operation of Sect ion 6 of the Succession Act. Irrespective of the adoption or otherwise, the legal position is Gurubai - daughter of Chandanna -
takes half share on the partition being a coparcenar through Chandanna and therefore the sha ring ratio as between the branch of plaintiffs and the 17th defendant on 44 the one hand and the rest of the defend ants on the other, remains as half share for each branch.
42. In this view of the matter, whether on a fact ual basis or on a legal basis the emerging pos ition is that the judgment and decree of the court belo w does not call for any interference. No scope for interference on any of the issues as the determined by the court below, all points framed for determination in this appeal are answered in favour of plaintiffs and against the def endants-appellants.
43. In the result, this appeal is dismissed wit h costs.
JUDGE *pjk