Karnataka High Court
Shivakumar Adopted Son Of Mallappa ... vs Smt Bangarevva W/O Basavaraj Balegar on 5 October, 2023
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NC: 2023:KHC-D:11833
RFA No. 100182 of 2014
C/W RFA No. 100181 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
R
DATED THIS THE *5 DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100182 OF 2014 (PAR-)
C/W
REGULAR FIRST APPEAL NO. 100181 OF 2014
IN RFA NO.100182/2014:
BETWEEN:
1. SRI. BASAPPA
MOHANKUMAR S/O VEERABHADRAPPA PUJAR
B SHELAR AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HANGAL, DIST: HAVERI-581104.
Digitally signed by
MOHANKUMAR B
SHELAR 2. SMT. SHASHIKALA
Date: 2023.12.16
13:41:57 +0530 W/O BASAPPA PUJAR
AGE: 53 YEARS, OCC: HOUSE HOLD WORK,
R/O: KYASANUR, TQ: HANGAL, DIST: HAVERI-581104.
...APPELLANTS
(BY SRI. J.S.SHETTY, ADVOCATE)
AND:
1. SMT. BANGAREVVA
W/O BASAVARAJ BALEGAR
AGE: 48 YEARS, R/O: KUSANUR,
TQ: HAVERI, DIST: HAVERI-581104.
2. SHIVANAND
S/O VEERABHADRAPPA PUJAR
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
*Corrected by Court
Order dated 13.12.2023.
Sd/-
(ARHJ)
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NC: 2023:KHC-D:11833
RFA No. 100182 of 2014
C/W RFA No. 100181 of 2014
3. SRI. SHASHIDAR
S/O VEERABHADRAPPA PUJAR
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
4. SMT. SHANTAVA
W/O CHANNABASAPPA HUGAR
@ WARDI, AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR,
TQ: HAVERI, DIST: HAVERI-581104.
5. SMT. GIRIJAVVA
W/O CHANNABASAPPA HUGAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
6. SHIVAKUMAR ADOPTED SON OF MALLAPPA PUJAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
...RESPONDENTS
(BY SRI. ROHIT PATIL, ADVOCATE FOR
SRI. SRIKANT T PATIL, ADVOCATE FOR R1(THORUGH GPA);
R3-NOTICE SERVED; SRI. N.M.PATIL, ADVOCATE FOR R3 (A TO D); R4-HELD
SUFFICIENT; SRI. C.V.ANGADI, ADVOCATE FOR R5;
R6-NOTICE SERVED)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT
AND DECREE DTD: 31.07.2014 PASSED IN O.S.NO.31/2005 ON THE FILE OF
THE SENIOR CIVIL JUDGE, HANGAL, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
IN RFA 100181/2014:
BETWEEN:
SHIVAKUMAR ADOPTED SON OF MALLAPPA PUJAR,
AGE: MAJOR, OCCUPATION: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
...APPELLANT
(BY SRI. V.G.BHAT, ADVOCATE)
AND:
1. SMT. BANGAREVVA
W/O BASAVARAJ BALEGAR,
AGE: 48 YEARS, OCC: AGRICULTURE AND HOUSEHOLD,
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NC: 2023:KHC-D:11833
RFA No. 100182 of 2014
C/W RFA No. 100181 of 2014
R/O: KUSANUR,
TALUK : HAVERI,DIST: HAVERI- 581104.
2. SHIVANAND
S/O VEERABHADRAPPA PUJAR
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
3. SRI. BASAPPA
S/O VEERABHADRAPPA PUJAR
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
4. SRI. SHASHIDAR
S/O VEERABHADRAPPA PUJAR
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
4. SMT. SHANTAVA
W/O CHANNABASAPPA HUGAR
@ WARDI, AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
5. SMT. GIRIJAVVA
W/O CHANNABASAPPA HUGAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
6. SMT. SHASHIKALA
W/O BASAPPA PUJAR
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: KYASANUR, TQ: HAVERI, DIST: HAVERI-581104.
...RESPONDENTS
(BY SRI. VINAY S KOUJALAGI, ADVOCATE;
SRI. M.L.VANTI, ADVOCATE FOR C/R1; SRI. ROHIT PATIL, ADVOCATE FOR
SRI. SRIKANT T PATIL, ADVOCATE FOR R1;
SRI. N.M.PATIL, ADVOCATE FOR R2;
R3, R6-NOTICE SERVED; SRI. C.V.ANGADI, ADVOCATE FOR R6;
R4 AND R5 ARE DECEASED; R4 AND R5 DISMISSED AS ABATED)
THIS RFA IS FILED U/S.96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED: 31.07.2014, PASSED IN OS.NO.31/2005, ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., HANGAL, DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE POSSESSION.
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NC: 2023:KHC-D:11833
RFA No. 100182 of 2014
C/W RFA No. 100181 of 2014
THESE APPEALS, COMING ON FOR FURTHER DICTATION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The plaintiff claimed ½ share in the suit properties described in three distinct schedules. The suit is decreed. The defendants have filed these two first appeals.
2. The admitted genealogy of the parties is as under:
Basappa Savantravva (wife) died Mallappa Veerabhadrappa (died-1995) (died-1990) Channabasavva Virupakshavva (died-1999) Bangaravva (Plaintiff) Shivanand Basappa Shashidhar Shantavva Girijavva (D1) (D2) (D3) (D4) (D5) Shashikala Shivakumar (D7) *D6) (Defendants claim that 6th defendant Shivakumar is adopted by plaintiff's mother Channabasavva. The plaintiff disputed the adoption)
3. The trial Court held that the adoption of the 6th *Corrected vide Court Order dated 13.12.23.
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(ARHJ) -5- NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 defendant under the registered adoption deed dated 02.09.1996 is not proved. The trial Court also rejected the defence that certain properties are self-acquired properties of Veerabhadrappa - the propositus of the defendants' branch.
4. Other facts necessary for the adjudication of the case are as under:
One Basappa was the propositus. His wife was Savantravva. The couple had two sons Mallappa and Veerabhadrappa. Mallappa died in 1995. Veerabhadrappa died in 1990. Mallappa's wife Channabasavva, died in 1999. Bangaravva the plaintiff, is the daughter of Mallappa and Channabasavva.
5. Veerabhadrappa the second son of the propositus Basappa, married Virupakshavva. From the said marriage he has three sons viz., Shivanand, Basappa and Shashidhar, and two daughters Shantavva and Girijavva.
6. Basappa the son of Veerabhadrappa married Shashikala. Shivakumar is the son of * Basappa and *Corrected vide Court order dated 13.12.2023.
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(ARHJ) -6- NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 Shashikala. The defendants claim that the plaintiff's mother Channabasavva, after her husband's death, adopted Shiva Kumar.
7. The plaintiff disputed alleged adoption of Shivakumar by her mother. The Plaintiff claims that she is the only daughter and class I heir of Mallappa and Channabasavva. Thus the plaintiff claimed ½ share in the suit properties held by her father Mallappa at the time of his death.
8. The defendants contended that item No.1 property was gifted to 1st defendant Shivanand in the year 1942 by Shankravva who is not connected to the family, and item No.9 to 11 properties (formerly Sy. No.26) were purchased under the registered sale deed dated 03.07.1961 by their father Veerabhadrappa. It is also the case of the defendants that item No.6 property was independently acquired by Veerabhadrappa.
9. Item Nos.2, 3, 4, 5, 7, 8, 12 and 13 properties are the said properties gifted by Savantravva in favour of her two sons Mallappa and Veerabhadrappa in 1942 and those properties were -7- NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 tenanted lands and occupancy rights were jointly granted in favour of Mallappa and Veerabhadrappa. After the death of Mallappa and Veerabhadrappa, the plaintiff being the married daughter of Mallappa, does not acquire any right is the submission.
10. The trial Court disbelieved the adoption of Shivakumar and concluded held all the suit properties are joint family properties and declared half share to the plaintiff.
11. Defendants No.2 and 7 - the natural parents of Shivakumar filed an appeal in RFA No.100182/2014. Shivakumar claiming to be the adopted son of plaintiff's mother Channabasavva, filed an appeal in RFA No.100181/2014.
12. Heard the learned counsel appearing for the parties in the aforementioned appeals.
13. Sri. J.S.Shetty, the learned counsel appearing for the appellants raised the following contentions;
13.1 The properties purchased in the name of -8- NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 Veerabhadrappa are the self-acquired properties of Veerabhadrappa.
13.2 The Tribunal granted occupancy rights over certain properties in favour of Mallappa and Veerabhadrappa. Thus, the plaintiff being married as on the date of grant, will not acquire any right over those properties, as the married daughter is not a member of the grantee's family.
13.3 Item No.1 property is gifted to 1st defendant as such, said property cannot be treated as a joint family property.
13.4 Since some of the properties were partitioned and sold before 20th December 2004, the plaintiff- daughter cannot claim a share in those properties.
14. Sri V.G.Bhat, learned counsel appearing for Shivakumar defending the adoption of Shivakumar would urge that;
14.1. The adoption deed dated 02.09.1996 is duly registered.
Under Section 16 of the Hindu Adoption -9- NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 and Maintenance Act, 1956, (Act, 1956) there is a presumption as to its validity. No evidence is placed before the Court to rebut the presumption in favour of registered adoption.
14.2. The Trial Court erred in casting the burden on the adopted son to prove the registered adoption, despite the presumption being in favour of a registered adoption.
15. Sri Angadi, learned counsel appearing for 5th defendant would submit;
- that 5th defendant has purchased 5 acres under the registered sale deed dated 22.05.1995 and she is allotted 5 acres under the registered partition deed dated 18.04.1991 and 5th defendant has gifted the entire 10 acres in the suit property in favour of her son and 5th defendant should be permitted to lead evidence on the sale deed and gift deed in support of her claim as she was placed exparte before the trial Court.
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014
- 5th defendant had moved an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree passed against her with an application for condonation of delay. The said proceeding in Misc. No.8/2014 was posted for judgment and the trial Court listed the petition seeking some clarification relating to service of notice on some of the parties. Thereafter, the petition was dismissed for non-prosecution vide order dated 08.03.2017. Thus, he would urge to remand the matter to enable defendant No.5 to contest the suit.
16. Sri. Rohit Patil, learned counsel appearing for the plaintiff/1st respondent would submit that the adoption dated 02.09.1996 is not valid. If at all the plaintiff's mother intended to take a male child in adoption, she would have certainly taken one of her three grandsons from her daughter (plaintiff) in adoption and there was no reason to take Basappa's son in adoption. Referring to the evidence of the natural parents of Shiva Kumar and the evidence of the photographer who was
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 examined to prove the adoption, he would urge that the inconsistencies in the evidence are good enough to rebut the presumption in favour of registered adoption.
17. He would also urge that Veerabhadrappa, who purchased the property in the year 1961, had no independent source of income to purchase the property and he utilised the joint family income which he derived from the properties gifted by Savantravva, jointly in favour of Mallappa and Veerabhadrappa. Thus, the properties purchased in the name of Veerabhadrappa are also joint-family properties.
18. The following points arise for consideration:
(i) Whether the trial Court is justified in casting the burden of proving the registered adoption deed on the adopted son, and justified in holding that the adoption of Shivakumar is not proved?
(ii) Whether all the suit schedule properties are joint family properties?
(iii) Whether a married daughter cannot succeed to the property granted to her father, if the grant of property
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 by the Tribunal under Karnataka Land Reforms Act is after daughter's marriage?
(iv) Whether the bar contained under Section 6 of the Hindu Succession Act, 1956 to claim equal share in respect of the properties alienated or partitioned before 20.12.2004 applies to the self-acquired properties?
(v) Whether an adoption by a widow, which took place after the commencement of the Hindu Adoption and Maintenance Act, 1956, relates back to the date of the death of her husband?
(vi) Whether the 5th defendant has made out a case for the production of additional documents and to remand the matter for fresh consideration.
Regarding proof of adoption and the burden of proof:
19. Section 16 of the Act, 1956 reads as under:
"16. Presumption as to registered documents relating to adoption- Whenever any document registered under any law for the
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
20. Section 16 referred to above is explicit. To attract the presumption under the said provision, the person asserting adoption has to prove three basic requirements.
(a) The deed recording adoption is registered in accordance with law,
(b) The adoption deed is signed by the person giving the child in adoption,
(c) The adoption deed is signed by the person taking the child in adoption.
If above mentioned basic requirements are prima facie noticed in the adoption deed, the Court has to presume that the adoption is made in compliance with the provisions of the Act unless it is
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 disproved.
21. Admittedly the adoption deed dated 02.09.1996 marked at Ex.D.5 is duly registered. The adoption deed is signed by the person who is purporting to give a child into adoption and also signed by the person who is taking the child into adoption. The basic requirements of Section 16 of the Act, 1956 are complied with.
22. When the law presumes certain things, and when such presumption is rebuttable, the burden of proving a contention contrary to such presumption is not on the person who takes shelter under the presumption; the burden is on the person who asserts contrary to such presumption. Thus, the burden could not have been cast on the 1st defendant to prove the registered adoption, when the adoption deed answered all the basic requirements under Section 16 of the Act, 1956. The issue should have been framed casting the burden on the plaintiff who disputed the registered adoption. The trial Court erred in this regard.
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014
23. To substantiate the contention that adoption is the outcome of fraud or impersonation as alleged, the plaintiff while cross-examining the defendant, has suggested that the thumb impression of Channabasavva found in the adoption deed is not her mother's thumb impression. It is further suggested that Channabasavva had not gone to the Office of the sub-registrar on the date of registration.
24. The genetic parents of Shivakumar who admit the adoption are examined. A photographer who claims to have witnessed the adoption ceremony is examined. Certain minor discrepancies are found in the evidence of the photographer which in the opinion of this Court is not-so-serious to doubt the adoption. No acceptable evidence is led to hold that the thumb impression on the registered adoption deed is not that of adoptive mother. On re appreciation of the entire evidence on record, particularly the evidence of the genetic parents who admit the adoption, and taking into consideration the presumption in favour of registered adoption, this Court is of the
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 view that the trial Court's finding that the adoption is not proved is erroneous, and accordingly set aside.
Regarding the nature of the properties:
25. The defendants contend that the property at Sl.No.1 is a self-acquired property of 1st defendant. Attention is drawn to a copy of the notarised gift deed in favour of 1st defendant. It is also their contention that item No.6 and items No.9 to 11 properties are the self-acquired properties of late Veerabhadrappa. Admittedly, the alleged gift deed in favour of 1st defendant, i.e., item No.1 property is not marked in evidence. Though Sri.Shetty would urge that the claim made by the defendants that item No.1 property is the self-acquired property is not disputed in evidence, this Court is of the view that it was incumbent on the defendants to produce the gift deed of the said property. The original gift deed is not tendered in evidence. Hence the contention that 1st defendant is the exclusive owner of item No.1 is not accepted.
26. In so far as item Nos. 6, 9 to 11 properties are
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 concerned, though the sale deeds are in the name of propositus Veerabhadrappa, it is elicited in the cross-examination of DW1 that these properties are acquired from the income from the properties jointly gifted by mother Savantravva in favour of Mallappa and Veerabhadrappa. It is also forthcoming from the records that Mallappa and Veerabhadrappa lived together till Veerabhadrappa died in 1990.
27. There is no pleading and evidence before the Court to hold that Mallappa and Veerabhadrappa did not reside together as joint family members. The defendants did not take a stand that Mallappa and Veerabhadrappa divided and shared the income during their lifetime and Veerabhadrappa purchased the properties after such division of income.
28. Mallappa and Veerabhadrappa jointly applied for grant of occupancy and the Tribunal granted occupancy rights jointly in favour of them. All these factors would lead to the conclusion that Mallappa and Veerabhadrappa lived together as joint family members.
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29. On re-appreciation of the evidence on record, this Court is of the view that the existence of joint family, jointly family nucleus and joint family properties are very much established. Thus, the property purchased in the name of Veerabhadrappa in 1961, cannot be construed as the self- acquired property of Veerabhadrappa, especially when there is no pleading and proof relating to the independent income of Veerabhadrappa to acquire the said property. Finding of the trial Court in this regard requires no interference.
Regarding the claim for partition by the married daughter in respect of the property granted by the Tribunal under the Karnataka Land Reforms Act 1961:
30. The contention that the occupancy rights are granted by the Tribunal in respect of certain properties, and by the time grant was made in the year 1991, Bangaravva/plaintiff was married, as such she is not entitled to inherit the property has no merit. It has to be noticed that the plaintiff is not claiming right over the property on the basis that it is a grant in favour of the joint family comprising the plaintiff. The properties are jointy granted to her father Mallappa and Mallappa's brother. After the
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 demise of her father Mallappa, succession opened in favour of Channabasavva, the wife of Mallappa and as well as Bangarevva the plaintiff, under Section 8 of the Hindu Succession Act, 1956, in respect of half share owned by Mallappa. For the reasons already discussed, the properties granted by the Land Tribunal under the Land Reforms Act, 1961 in favour of Mallappa and Veerabhadrappa, are also self-acquired properties of Mallappa and Veerabhadrappa as tenancy was acquired by them under the gift deed. Even if the daughter-plaintiff was married at the time of the grant of occupancy in favour of her father, after the demise of the grantee, the daughter/plaintiff will inherit the property as the grantee died intestate. Under Section 8 of the Hindu Succession Act, 1956, there is no bar to succeed to the property granted by the Tribunal after the death of the grantee. This being the position, the contention that the plaintiff does not succeed to the granted property as she was married by the time of the grant of land by the Tribunal is rejected.
Next question is whether the bar contained under Section 6 of the Hindu Succession Act, 1956 to claim share in the
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 properties in the event of alienation or partition before 20th December 2004, applies to the properties inherited under Section 8 of the Hindu Succession Act, 1956?
31. The learned Counsel for the appellant submits that the plaintiff cannot claim a share in the suit properties in view of the bar under proviso to Section 6 (1) of the Hindu Succession Act, 1956 as there was already a partition in 1991 and alienation in 1995 before 20th December 2004 the cut off date under the above said proviso.
32. The contention is to be rejected for the simple reason that the plaintiff has acquired rights under Sections 8 and 15 of the Hindu Succession Act, 1956 in respect of the properties of her father and mother respectively. The bar contained under Section 6 of the Hindu Succession Act, 1956 to claim equal share in the properties sold or partitioned before 20th December 2004, is not applicable to the properties inherited under Section 8 and 15 of the Hindu Succession Act 1956. It applies only to coparcenary property.
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33. So far as the prayer of 5th defendant (sister of defendants No.1 to 4), to remand the matter to enable her to produce additional documents and contest the suit is concerned, it is to be noticed that her defence before this Court is based on the notarised copy of the registered partition deed of 1991, the notarised copy of the registered sale deed of 1995 and also the gift deed of 2014. As far as the gift deed of 2014 is concerned, it is executed during the pendency of this appeal. Hence, the donee is bound by the result of these appeals. As far as the registered partition deed of 1991 and registered sale deed of 1995 are concerned, the plaintiff is not a party to the aforementioned documents. Hence those documents do not bind the plaintiff even if they are proved.
34. Moreover in case 5th defendant has acquired any right under the registered partition deed of 1991 or the registered sale deed of 1995, the same shall be valid to the extent of the share allotted to the branch of Veerabhadrappa and held by her vendors who are her brothers. Hence, merely because the 5th defendant remained exparte, it cannot be said that her interest
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 is not safeguarded. It is also not her case that the summons is not served on her. Summons is duly served. No acceptable reasons are assigned for remaining exparte before the trial Court.
35. This Court has concluded that the adoption deed dated 02.09.1996 in favour of Shivakumar is a valid adoption. By the time Shivakumar was adopted by Channabasavva, her husband had died. As a result, the succession had opened in favour of wife Channabasavva and daughter Bangaravva who are the Class-I -heirs of Mallappa. Now the question is, whether the adoption by Channabasavva, the widow of Mallappa divests the right vested in Channabasavva and Bangaravva by applying the doctrine of relation back?"
36. Sri. J.S.Shetty. learned counsel for the appellants would submit that notwithstanding Section 12(c) of the Hindu Adoption and Maintenance Act, 1956, the adoption dated 02.09.1996 relates to the date of death of Mallappa who died in 1995 and it should be construed that Mallappa and his wife Channabasavva have taken Shivakumar in adoption. In support
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 of his contention, he would place reliance on the following judgments:-
i) Krishnamurthi Vasudeorao Deshpande V/s Dhruwaraj (1962) 1SCR 813.
ii) Danaji and others v/s Daddi and others (1990) 1 SCC 1.
iii) Vasanth and another V/s Dattu and others (1987) 1 SCC 160.
iv) Vithal Bapu Mane V/s Balasaheb Sidhu Masal and others 2017(3) Mh.L.J.
v) Shripad Gajanan Suthankar V/s Dattaram Kashinath Suthankar and others (1974) 2 SCC 156.
vi) Vineeta Sharma V/s Rakesh Sharma ILR 2020 KAR 4370.
37. This Court has perused the aforementioned judgments. As far as the judgments in Krishnamurthi Vasudeorao Deshpande V/s Dhruwaraj and Vithal Bapu Mane V/s Balasaheb Sidhu Masal and others supra, it has to be noticed that in both cases the adoption in question took place prior to commencement of the Hindu Adoption and Maintenance Act, 1956. The Hon'ble Apex Court had no occasion to deal with the scope and impact of Sections 4 and 12(c) of the Act, 1956 in those cases. Hence, the ratio laid down in the aforementioned
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 judgments cannot be applied to the present case where the adoption is governed by Act of 1956.
38. On a proper reading of the judgment particularly paragraph No.7 in Danaji and others v/s Daddi and others supra, same does not come to the aid of the appellants. On the contrary, it supports the view of the respondents who contend that the adoption does not divest vested right of the members of the adoptive family.
39. The judgment of the Bombay High Court in Vithal Bapu Mane vs Balasaheb Sidhu Masal and others supra cannot be considered as a law on Section 12(c) of the Act, 1956 as no reference is made to the said provision.
40. Sri J.S.Shetty, the learned counsel would also place reliance on the judgment of the Hon'ble Apex Court in the Case of Vineeta Sharma vs Rakesh Sharma supra. Referring to paragraph 72 he would urge that in case the adoption is by a widow of a deceased coparcener, the adoption should be treated as one relating to the date of death of her husband subject to,
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 certain savings like alienation made in the intermittent period. In Vineeta Sharma supra, the reference is not made to Sections 4 and 12(c) of the Act of 1596. In Paragraph no.126 of the said judgment, reference is made to Shripad Gajanan Suthankar vs Dattaram Kashinath Suthankar and others supra. As already discussed supra the Hon'ble Apex Court was dealing with the effect of adoption before 12.12.1956 in the said case. Hence, the contention of the appellants with reference to Section 12(c) of Act, 1956 based on the judgment in the case of VINEETA SHARMA supra cannot be accepted.
41. Whether the principles of law relating to adoption prior to the Act of 1956, can be applied to adoptions governed by the Act of 1956, has to be understood with reference to Sections 4 and 12 of the Act of1956, which came into force with effect from 21.12.1956.
Section 4 reads as under:
"4.Overriding effect of Act.--Save as otherwise expressly provided in this Act,--
1. Any text, rule or interpretation of Hindu Law of any custom or usage as part of that law in force immediately before the
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
2. Any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act"
42. A bare reading of Section 4 of the Act, of 1956, which has brought in sweeping changes relating to adoption among Hindus, would reveal that any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force, immediately before the commencement of the Act of 1956, will have no effect in respect of any matter for which the provision is made in this Act.
Clause (b) of Section 4 would reveal that any law inconsistent with the provisions of the Act of 1956 before the commencement of the Act of 1956 will cease to have any effect. Thus, it is apparent the Act of 1956 overrides the law relating to adoption in force before 1956 with respect to any matters provided in the Act of 1956 and those matters which are inconsistent with the provisions of the Act of 1956.
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014
43. Now, the Court has to see the implication of Section 12 of the Act of 1956. Section 12 reads as under:
"Effect of adoption.--An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that-
a) The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
b) Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations. If any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth.
c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption"
44. On a reading of the aforementioned provision, under Section 12 (excluding the proviso) two things are evident. That from the date of adoption;
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014
(i) adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes
(ii) all the ties of the child in the family of his or her birth shall be deemed to be severed and will be replaced by those created by the adoption in the adoptive family:
However the proviso to the Section 12 spells out exceptions namely, a. The child cannot marry any person whom he or she could not have married if there was no adoption.
b. The property vested before adoption in the adopted child before the adoption shall continue to vest in such person with certain obligations attached to the property vested. c. The adopted child shall not divest any person of any estate which vested in him or her before adoption.
Section 12(c) of the Act of 1956 is relevant here. As already noticed, the law before 1956 provided for relating back
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 the adoption to the date on which the husband of the adoptive mother died. It also meant that in such a situation, the adopted son would divest the property of the adoptive mother which she inherited after the demise of the husband, as the adopted son would be deemed to be the adopted son of the deceased husband of his adoptive mother, and adopted son will acquire the right to the property of the husband of the adoptive mother.
45. After the Act of 1956, the position has changed by operation of Sections 4 and 12(c) of the Act of 1956. Thus, the right vested in the member of an adoptive family before the adoption, does not get divested, if adoption takes place after the commencement of Act of 1956. Likewise the right vested in the child before adoption in the family of his birth will continue to vest even after the adoption by operation of Sections 4 and 12 of the Act of 1956.
46. The Hon'ble Apex Court in the case of Saheb Reddy vs Sharanappa and others (2017)1 SCC 142 has considered the effect of Section 12(c) of the Hindu Adoption and
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 Maintenance Act, 1956. In paragraph No.18 of the judgment the Hon'ble Apex Court analyzing the facts involved in the said case has held as under:
"18. Looking at the provisions as mentioned earlier of Section 12 of the Adoption Act, it is crystal clear that the property which had been vested in the widow and three daughters of late Sri. Sharanappa Gaded in 1957 would not be disturbed because of the adoption of defendant No.1 which had taken place on 09.02.1971. Thus, Smt.Sharanappa had become the absolute owner of ¼ share and Smt. Nagamma the mother of the plaintiff had also become an owner of ¼ share of the property belonging to late Sri.Sharanappa Gaded.
This being the implication of Sections 4 and 12 of the Act of 1956, on the adoption which has taken place or takes place after 21.12.1956, such adoption cannot divest any right of a person from the adoptive family, which is vested in him or her, before adoption.
47. The judgments recognising the 'doctrine of relation back' concerning an adoption by a widow, rendered by
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 interpreting the adoption which has taken place prior to 1956, cannot be cited as a precedent to urge a contention that the adoption by a widow after the commencement of Act of 1956 will relate back to the date of death of her husband.
48. Now, the Court has to consider the effect of Section 8 and the devolution of shares. As already noticed Mallappa died in 1995 and his ½ share in the suit properties devolved upon his wife Channabasavva and daughter Bangaravva-plaintiff. Thus, by the time adoption took place, Bangaravva the daughter/plaintiff and Channabasavva the wife of Mallappa, each had half share in the half share of Mallappa. Thus, Channabasavva inherited 1/4th share in the suit schedule properties and Bangaravva had 1/4th share in the suit schedule properties as both inherited Mallappa's share who had ½ share in the suit properties.
49. Channabasavva's 1/4th share would devolve equally upon the adopted son Shivakumar and the daughter Bangaravva. Thus, Bangaravva will have a 3/8th share (1/4th her share + 1/8th share of *Channabasavva) in the suit schedule properties and Shivakumar will have a 1/8th share in the suit *Corrected vide Court Order dated 13.12.2023.
Sd/-
(ARHJ)
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 schedule properties *held by Channabasavva.
50. In case there is a sale or partition among the members of Veerabhadrappa's family, that sale transaction or partition is valid only to the extent of half share held by Veerabhadrappa's branch.
ORDER
i. The appeals are allowed in part.
ii. The judgment and decree in O.S.No.31/2005 on the
file of the Senior Civil Judge, Hangal are set aside and the suit of the plaintiff is decreed in part holding that the plaintiff has 3/8th share as indicated above, in the suit schedule properties.
iii. Defendant No.6 - Shivakumar will have 1/8th share in the suit schedule properties.
iv. The rest of the defendants excluding defendant No.6 -
Shivakumar will inherit the half share of Veerabhadrappa in the suit schedule properties equally.
*Corrected vide Court order dated 13.12.2023.
Sd/-
(ARHJ)
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NC: 2023:KHC-D:11833 RFA No. 100182 of 2014 C/W RFA No. 100181 of 2014 v. The plaintiff is also entitled to initiate proceedings to ascertain past profits starting from three years before the suit and future profits payable in respect of her share.
vi. The parties to the proceeding are entitled to initiate Final Decree Proceedings pursuant to this preliminary decree.
Sd/-
JUDGE BRN, VMB List No.: 1 Sl No.: 40