Karnataka High Court
Sri Nagappa Shivappa Bukitgar vs Shri Gundu Mahadev Kshirasagar on 29 July, 2022
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.1799 OF 2006(DEC & INJ & PAR)
C/W
RSA CROB.15 OF 2006(DEC & PAR)
IN RSA NO.1799/2006
BETWEEN:
SRI.NAGAPPA
S/O SHIVAPPA BUKKITGAR
SINCE DECEASED BY LRs
1A. SMT.DANAMMA W/O NAGAPPA BUKKITGAR
AGE:55 YEARS, OCC: HOUSEHOLD WORK,
R/O PLOT NO.1342/A, MAIN ROAD,
ATHANI, TAL: ATHANI,
DIST: BELAGAVI-591304
1B. SMT.SUREKHA W/O BRAHMANAND PATIL
D/O NAGAPPA BUKKITGAR
AGED 52 YEARS, OCC: HOUSEHOLD WORK,
R/O H.NO.260/52, GURU KRUPA ADARSH NAGAR,
GOKAK ROAD, HUKKERI-591609
TAL: HUKKERI, DIST: BELAGAVI
1C. SMT.JAYASHRI, W/O CHANNABASAPPA BIRAJDAR
D/O NAGAPPA BUKKITGAR,
AGED 50 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR AMBIKA TEMPLE, 1050,
UTTAR KASBA, SOLAPUR NORTH, SOLAPUR-413007,
DIST: SOLAPUR, MAHARASHTRA STATE.
2
1D. SMT. SUJATA W/O GIRIMALLA PATIL
D/O NAGAPPA BUKKITGAR
AGED 48 YEARS, OCC: HOUSEHOLD WORK,
R/O PLOT NO.1342/A, MAIN ROAD,
ATHANI, TAL: ATHANI,
DIST: BELAGAVI-591304
1E. SMT.UMA W/O SHANKAR DOOGANAVAR
D/O NAGAPPA BUKKITGAR,
AGED 45 YEARS, OCC: HOUSEHOLD WORK,
R/O H.NO.4741/24/B, RANI CHANNAMMA NAGAR,
JAMAKHANDI, TAL: JAMAKHANDI-587301
DIST: BAGALKOTE.
...APPELLANTS
(BY SRI.SRINAND.A.PACHHAPURE, SRI.MAHANTESH.S.HOSAMATH,
AND SRI.RAJENDRA.R.PATIL, ADVOCATES)
AND:
1. SRI.GUNDU MAHADEV KSHIRASAGAR
AGE: 60 YEARS, OCC: BARBAR,
R/O ATHANI, DIST: BELAGAVI-591304
2. SRI.SURYAKANT MAHADEV KSHIRASAGAR
AGE: 57 YEARS,
R/O ATHANI, DIST: BELAGAVI-591304
3. SRI.ANNAPPA APPANNA KALAMBI
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI-591304,
DIST: BELAGAVI.
SRI.BHIMARAO MAHADEV UPPAR @ KALELI
SINCE DECEASED BY HIS LRs
4A. SMT.SONAWWA W/O BHIMARAO UPPAR @ KALELI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI-591304.
3
4B. SRI.EKNATH S/O BHIMARAO UPPAR @ KALELI
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI-591304.
4C. SRI.MURALIDHAR S/O BHIMARAO UPPAR @ KALELI
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI-591304.
4D. SMT.CHAMUNDI W/O AJIT MUNJE
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: MOLE, TAL: ATHANI,
DIST: BELAGAVI-591304.
4E. SMT.MAYAWWA W/O SADASHIV MUNJE,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: MOLE, TAL: ATHANI,
DIST: BELAGAVI-591304.
4F. SMT.JAYASHRI W/O SIDARAY HARAGE
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUNDEWADI, TAL: ATHANI,
DIST: BELAGAVI-591304.
4G. SMT. ASHWINI W/O SUDHIR KHOT
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHEGAON, TAL: JATH-416404,
DIST: SANGALI, MAHARASHTRA STATE.
5. SRI.MALLAPPA PARAPPA KANKAREDDI
AGE: 50 YEARS,
R/O MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI-591304.
BOTH ARE R/O MOLE VILLAGE
TQ: ATHANI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI.SANGRAM.S.KULKARNI, ADVOCATE FOR R1 TO R3;
4
SRI.B.S.KAMATE, ADVOCATE FOR R4(A TO G);
SRI.B.S.KAMATE, ADVOCATE FOR C/R5;
SRI.R.M.KULKARNI, ADVOCATE FOR IMPLEADING APPLICANTS IN
IA NO.1/2018)
THIS RFA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT
AND DECREE DTD 18.04.2006 PASSED IN R.A.NO.518/2004 ON
THE FILE OF THE DISTRICT AND SESSIONS JUDGE, FAST TRACK
COURT-I, CHIKODI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DTD 08.11.2004 PASSED IN OS
NO.128/1993 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & ASST.
SESSIONS JUDGE, ATHANI, TRAIL COURT PARTLY DECREED THE
SUIT, APPELLATE COURT ALLOWED THE APPEAL SUIT FOR
DECLARATION AND INJUNCTION.
IN RSA CROB NO.15/2006
BETWEEN:
1. SRI.GUNDU MAHADEV KSHIRASAGAR
AGE: 62 YEARS, OCC: BARBAR,
R/O 1342A, ATHANI,
DIST: BELAGAUM-591304
2. SRI.SURYAKANT MAHADEV KSHIRASAGAR
AGE: 59 YEARS, OCC: BARBAR
R/O 1342A, ATHANI,
DIST: BELAGAUM-591304
3. SRI.ANNAPPA APPANNA KALAMBI
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI-591304,
DIST: BELAGAUM.
4. SRI.BHIMARAO MAHADEV UPPAR @ KALELI
AGE: 52 YEARS, OCC: AGRICULTURE,
SINCE DECEASED BY HIS LRs
4A. SMT.SONAWWA BHIMARAO UPPAR @ KALELI
AGE: 54 YEARS, OCC: AGRICULTURE,
5
R/O: MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI.
4B. SRI.EKNATH S/O BHIMARAO UPPAR @ KALELI
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI.
4C. SRI.MURALIDHAR BHIMARAO UPPAR @ KALELI
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O: MURGUNDI, TAL: ATHANI,
DIST: BELAGAVI.
4D. SMT.CHAMUNDI W/O AJIT MUNJE
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: MOLE, TAL: ATHANI,
DIST: BELAGAVI.
4E. SMT.MAYAWWA W/O SADASHIV MUNJE,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: MOLE, TAL: ATHANI,
DIST: BELAGAVI.
4F. SMT.JAYASHREE W/O SIDARAY HARAGE
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUNDEWADI, TAL: ATHANI,
DIST: BELAGAVI.
4G. SMT. ASHWINI W/O SUDHIR KHOT
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHEGAON, TAL: JATH,
DIST: SANGALI.
5. SRI.MALLAPPA PARAPPA KAMAKAREDDI
AGE: 52 YEARS, OCC: AGRICULTURE
R/O MURUGUNDI, TAL: ATHANI,
DIST: BELAGAVI-591304.
...CROSS OBJECTORS
(BY SRI.B.S.KAMATE, ADVOCATE)
6
AND:
SRI.NAGAPPA SIDDAPPA BUKKITGAR
AGE: 58 YEARS, OCC: RETD. SERVICE,
SINCE DECEASED BY LRs
1A. SMT.DANAMMA W/O NAGAPPA BUKKITGAR
AGE:55 YEARS, OCC: HOUSEHOLD WORK,
R/O PLOT NO.1342/A, MAIN ROAD,
ATHANI, TAL: ATHANI,
DIST: BELAGAVI-591304
1B. SMT.SUREKHA W/O BRAHMANAND PATIL
D/O NAGAPPA BUKKITGAR
AGED 52 YEARS, OCC: HOUSEHOLD WORK,
R/O H.NO.260/52, GURU KRUPA ADARSH NAGAR,
GOKAK ROAD, HUKKERI-591609
TAL: HUKKERI, DIST: BELAGAVI
1C. SMT.JAYASHRI, W/O CHANNABASAPPA BIRAJDAR
D/O NAGAPPA BUKKITGAR,
AGED 50 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR AMBIKA TEMPLE, 1050,
UTTAR KASBA, SOLAPUR NORTH, SOLAPUR-413007,
DIST: SOLAPUR, MAHARASHTRA STATE.
1D. SMT. SUJATA W/O GIRIMALLA PATIL
D/O NAGAPPA BUKKITGAR
AGED 48 YEARS, OCC: HOUSEHOLD WORK,
R/O PLOT NO.1342/A, MAIN ROAD,
ATHANI, TAL: ATHANI,
DIST: BELAGAVI-591304
1E. SMT.UMA W/O SHANKAR DOOGANAVAR
D/O NAGAPPA BUKKITGAR,
AGED 45 YEARS, OCC: HOUSEHOLD WORK,
R/O H.NO.4741/24/B, RANI CHANNAMMA NAGAR,
JAMAKHANDI, TAL: JAMAKHANDI-587301
7
DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI.SRINAND.A.PACHHAPURE & SRI.RAJENDRA.R.PATIL,
ADVOCATES FOR R1(A-E))
THIS RFA CROB IS FILED U/S 41 R 22 OF CPC AGAINST THE
JUDGMENT AND DECREE DTD 18.04.2006 PASSED IN R.A.NO.518/2004
ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE, FAST TRACK
COURT-I, CHIKODI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DTD 08.11.2004 PASSED IN OS NO.128/1993
ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & ASST. SESSIONS JUDGE,
ATHANI, PARTLY DECREEING THE SUIT OF DECLARATION AND
INJUNCTION.
THESE RSA AND RSA CROB HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.01.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by plaintiffs in O.S.No.128/1993 questioning the judgment and decree dated 18.4.2006 passed in R.A.No.518/2004 by the Fast Track Court-I and District and Sessions Judge, Chikkodi whereas RSA.Crob.No.15/2006 is filed by defendants 2 to 5.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The brief facts of the case are as under:
8
The original plaintiff Nagappa instituted two suits in O.S.Nos.128/1993 and 47/1997. O.S.No.128/1993 was filed against the widow of Shivappa and others seeking a relief of declaration to declare that he is the adopted son of Shivappa Bukitgar and therefore, claimed absolute ownership of suit schedule properties on account of adoption. In the alternative, the original plaintiff Nagappa prayed for allotment of his legitimate half share in the suit schedule properties. The original plaintiff Nagappa also filed a suit for injunction simplicitor in O.S.No.47/1997 against Annappa who is the third defendant in O.S.No.128/1993.
3(a) The original plaintiff Nagappa in the comprehensive suit bearing O.S.No.128/1993 claimed that Shivappa Bukitgar, who is the husband of first defendant Subhadrawwa has taken the plaintiff in adoption on 15.10.1964 under registered adoption deed. During the pendency of the suit, the widow of Shivappa died and therefore, the original plaintiff-Nagappa claimed absolute ownership on account of death of widow of 9 Shivappa. The plaintiff also sought for declaration to declare that the sale deed dated 7.9.1983 in favour of defendants 2 and 3 and sale deed dated 27.10.1986 in favour of defendants 5 and 6 are illegal and not binding on plaintiff.
3(b) While defendants disputing the status of the plaintiff claimed that the deceased Shivappa during his life time has bequeathed the suit schedule properties in favour of his wife on 8.7.1966 and therefore, contended that the widow of Shivappa i.e. defendant No.1 has become full owner of the suit schedule properties in her own right under Section 14 of the Hindu Succession Act.
3(c) While defendant 2, 3, 5 and 6 claimed to be bonafide purchasers for valuable consideration. The defendants also contended that plaintiff is not competent to divest the widow of Shivappa in view of Section 12 of Hindu Adoption and Maintenance Act. The defendant No.4 also claimed to be bonafide purchaser of Survey No.1793/2 . 10
3(d) The original plaintiff Nagappa, who is the plaintiff in both the suits lead in oral evidence by examining himself as P.W.1 and six witnesses as P.Ws.2 to 7 and produced documentary evidence vide Exs.P1 to P33.
3(e) The defendants to counter the claim of plaintiff lead in oral evidence. Defendant No.4 was examined as D.W.6. The defendants also examined witnesses in their support and produced documents vide Exs.D1 to D29.
3(f) The learned Judge having examined the oral and documentary evidence as well as pleadings answered issue Nos.1 and 2 in the affirmative and answered issue Nos.3 to 5 in the negative and issue No.6 in the affirmative. The learned Judge also answered additional Issue Nos.1 and 3 in the affirmative and additional issue No.2 in the negative. The learned Judge decreed the suit by declaring that plaintiff is the adopted son of Shivappa Bukitgar. The learned Judge also recorded a finding that the suit schedule properties are also joint family properties. While dealing with issue No.3, the 11 learned Judge held that defendants have failed to prove due execution of Will in favour of his wife Subhadrawwa. On these set of reasonings, the learned Judge decreed the suit in O.S.No.128/1993 declaring the original plaintiff-Nagappa as absolute owner in terms of the registered adoption deed to an extent of half share in the suit schedule properties. The Trial Court also granted the relief of declaration thereby declaring the alienations in favour of defendants 4 to 6 as not binding on defendants' half share. Consequently, the defendants were restrained by way of perpetual injunction from interfering with plaintiff's possession of suit schedule properties.
3(g) The defendants 2 to 6 feeling aggrieved by the judgment and decree of the Trial Court preferred an appeal in R.A.No.518/2004. The Appellate Court on re-appreciation of oral and documentary evidence has allowed the appeal reversing the finding of the Trial Court and has consequently, dismissed the suit filed in O.S.No.128/1993. The Appellate Court though concurred with the finding of the learned Judge 12 on Issue No.1 relating to adoption, however while dealing with point No.2 relating to registered Will, the Appellate Court held that due execution of Will is proved by defendants. The Appellate Court was of the view that if the testamentary succession in view of bequeath by Shivappa is proved, then the widow of Shivappa namely Subhadrawwa would become the full owner of the suit schedule properties and therefore, she has every right to alienate the suit schedule properties. It is in this background, the Appellate Court recorded a finding that even if plaintiff has succeeded in establishing his status as an adopted son, by virtue of testamentary succession, widow of Shivappa acquired absolute title and therefore, proceeded to allow the appeal and consequently, the suit filed by the plaintiff in O.S.No.128/1993 and also perpetual injunction granted in O.S.No.47/1997 were set aside and suits were dismissed.
3(h) The original plaintiff Nagappa feeling aggrieved by the judgment and decree passed in R.A.No.19/2004 reversing 13 the judgment and decree in O.S.No.128/1993 has preferred RSA No.1799/2006. The defendants 2 to 5 have also filed cross objection in RSA.Crob.No.15/2006 questioning the finding of the Appellate Court recorded on Point No.1 wherein the Appellate Court has concurred with the finding of the Trial Court on Issue No.1 declaring the original plaintiff Nagappa as adopted son of Shivappa. But, however, while answering point No.2 the Appellate Court has answered the same in the affirmative by holding that defendants 2 to 6 have succeeded in proving due execution of Will by Shivappa in favour of Subadrawwa on 8.7.1996. Having answered point No.2 in the affirmative, the Appellate Court has held that the widow of Shivappa i.e deceased defendant No.1 by virtue of the Will has become the owner of the property and therefore, she had every right to alienate the suit schedule properties.
3(i) Feeling aggrieved by the judgment and decree of the Appellate Court in R.A.No.518/2004 reversing the judgment and decree passed in O.S.No.128/1993, the legal 14 representatives of original plaintiff-Nagappa have preferred the captioned second appeal in RSA.No.1799/2006. The defendants have filed cross-objections in RSA.Crob.15/2006 questioning the finding of the Appellate Court recorded on Point No.1 relating to adoption.
4. This Court was pleased to admit the second appeal in RSA.No.1799/2006 on following substantial questions of law which are culled as under:
"1. Whether the courts below were right in giving an affirmative finding on the validity of the adoption of plaintiff Nagappa, in the face of the provisions of the Hindu Adoption & Maintenance Act?
2. Whether the registered Will dated 8.7.1966 executed by Shivappa in favour of his wife Smt.Subhadrawwa is valid and in accordance with law?
3. Whether the suit property are joint family property which could be partitioned between the plaintiffs and the defendants?"15
This Court during the course of hearing has formulated the following additional substantial question of law which reads as under:
"Whether propositus Shivappa was having right to bequeath the entire suit schedule properties which are admittedly joint family ancestral properties and therefore even if the Will is held to be proved, whether the Appellate Court was justified in dismissing the suit in entirety?"
5. Learned counsel appearing for the plaintiffs would vehemently argue and contend before this Court that the finding recorded by the Court below on Point No.2 is palpably erroneous and in absence of clinching evidence led in by defendants. He would point out that first defendant who is the adoptive mother of original plaintiff- Nagappa did not enter witness box and died during the pendency of the suit. He would submit that the alleged Will dated 8.7.1966 said to have been executed by Shivappa thereby bequeathing the properties to his wife who is defendant No.1 is shrouded by suspicious circumstances. Referring to the oral evidence of P.W.2, the learned counsel would point out that there is 16 sufficient material on record which clearly shows that the adoptive father Shivappa had suffered a paralytic stroke and was not in a position to sign any document. To buttress his arguments, he has referred to the pleadings in the plaint as well as para 10 in examination-in-chief as well as in cross- examination at page 39. The learned counsel for the appellants would point out that original plaintiff was taken in adoption on 16.10.1964 while the alleged Will is dated 8.7.1966. The alleged Will does not speak about adoption of original plaintiff Nagappa by Shivappa. The suppression of factum of adoption in the alleged Will would give rise to suspicious circumstances. He would point out that the propounder of the Will has not removed all the suspicious circumstances. He would also further submit that defendants 2 to 6 are purchasers and strangers to the family of the appellants and therefore, they are only competent to speak about the transactions and have no locus standi to depose in regard to execution of Will by Shivappa. He would further 17 submit that both, witnesses to the Will and scribe are no more and therefore, the legatee ought to have taken recourse to Section 69 of the Indian Evidence Act. He would point out that D.W.5 is only a witness to the transaction but not a witness to the Will. It is further contended that appellants have succeeded in eliciting in the cross-examination that he never participated in the family affairs of Shivappa. On these set of grounds, the learned counsel for appellant would contend that D.W.5 has not spoken anything about the signature of the attesting witness to the Will and therefore, the finding recorded by the Appellate Court on point No.2 holding that Will is held to be proved is palpably erroneous.
5(a) To buttress his arguments, he has placed reliance on the following judgments:
(A) CUSTOM JUDICIALLY RECOGNISED:
1.Laxman Ganapati Khot .vs. Anusyabai [LAWS(BOM)-1974-4- 16
2.Haribai .vs. Baba Anna and another [AIR 1977 BOM 289] 18
3.Kondiba Rama Papal .vs. Narayan K. Papal [AIR 1991 SC 1180]
4.Channabasappa .vs. Veerayya Ulavayya Hiremath [ILR 2007 KAR 4381] (B)ADOPTION CREATES CO-PARCENARY INTEREST (1)Dharma Shamrao Agarwal .vs. Pandurang Mangu Agarwal [AIR(SC) 1988-0-845] (2) Basavarajappa .vs. Gurubasamma [SCC-2005-12-290] (C)CO-PARCENARY INTEREST CANNOT BE GIFTED/ALIENATED:
1.Mukunu Singh vs. Wazir Singh [SCC 1972-4-178]
2.Babu Ningappa Yalgundri and others .vs. Arunkumar alias Basappa and others [AIR 1988 KAN 139] (D) PROOF OF ADOPTION:
1.Sriram Jain .vs. Manjubai Jain & others [AIR 2009 SC 104] (E) WILL
1. Venkatachala .vs. B.N. Thimmayamma [AIR (SC) 1959-0- 443 19
(F) ADOPTION EFFECT OF
1.Narasimhaiah Setty .vs. Govindappa Naidu and others [1982(1) KLJ 210] 5(b) He would conclude his arguments by contending that insofar as factum of adoption is concerned, both the Courts have concurrently held that original plaintiff Nagappa is the adopted son of Shivappa and therefore, would pray this Court to dismiss the connected cross appeal filed by the defendants questioning the concurrent finding on adoption.
6. Learned counsel appearing for cross-objectors reiterating the grounds urged in the cross-appeal would however strenuously argue and contend that the findings of the Courts below in regard to adoption is palpably erroneous and contrary to Section 10(4) of Hindu Adoption and Maintenance Act, 1956(for short "Act of 1956"). He would contend that admittedly the original plaintiff was a major and therefore his adoption is contrary to the provisions of Act of 1956. He would contend that there is absolutely no pleading 20 indicating customary practice of adopting a major person. Therefore, he would submit that in absence of pleadings, oral evidence relating to custom was totally inadmissible in evidence and these facts are not considered by both the Courts below and therefore, the same would give rise to substantial question of law.
He would further contend that there are absolutely no materials indicating that original plaintiff Nagappa was taken in adoption. He would point out that it was only first defendant's name which was duly mutated to the revenue records after the death of Shivappa. Therefore, he would contend that it is the first defendant who exercised absolute right after the demise of her husband. The right to sue first accrued on 16.4.1972 and therefore, the present suit is barred by limitation as per Article 58 of the Limitation Act.
7. Learned counsel appearing for defendants/purchasers arguing in the same vein would contend that first defendant succeeded to the suit schedule 21 properties on the basis of the Will and therefore, the alienations by first defendant in favour of defendants 2 to 6 are valid and would bind the plaintiff. He would contend that the present suit is not at all maintainable and the sale deeds executed by first defendant cannot be invalidated.
8. Heard the learned counsel for the appellants and the counsel appearing for cross-objector as well as the learned counsel appearing for the defendants/purchasers.
9. IN REGARD TO SUBSTANTIAL QUESTION OF LAW No.1:
Insofar as the contentions raised in the cross-appeal are concerned, this Court would find that there is concurrent finding in regard to adoption of original plaintiff Nagappa by Shivappa Bukitgar. The adoption deed is produced vide Ex.P1. Original plaintiff has examined three witnesses as P.Ws.2 to 5 and all of them have stated in unequivocal terms that they were present when the adoption ceremony was celebrated. 22 P.W.2 is aged 80 years and he has categorically stated that he was present at the adoption ceremony and has also stated that an adoption deed was written and the same was registered in the Sub-Registrar's Office. P.Ws.3 and 4 have deposed in the same vein, who are aged 72 years and 78 years respectively. Similarly, P.W.5 has also stated that he was also taken in adoption in the family of one Naik and he was aged about 21 years. He has further specifically deposed that there is a custom prevailing in their community. The photographer who was present during the adoption ceremony is also examined as P.W.6. P.W.7 who was a witness to the adoption deed is examined. He is aged 76 years and he is a doctor practicing at Athani. Ex.P2 is the waradhi submitted by first defendant after death of Shivappa wherein she has clearly requested to mutate her name along with her adopted son. This waradhi is not only submitted to the Revenue Authorities but also to the Office of City Survey stating that deceased Shivappa is survived by widow and an adopted son as per 23 Ex.P4 dated 25.7.1972. Ex.P7 is the certified copy of the mutation bearing M.V.No.16130 effected during 1972-73 and in the said mutation the original plaintiff Nagappa's name is mutated and the entry is made indicating that he is the adopted son of Shivappa. Ex.P9 is an application submitted by adopted son to open an account in Sangli bank. First defendant Subhadrawwa has given her consent as per Ex.P11 permitting the plaintiff to operate her account. The ledger extract is produced at Ex.P12 and plaintiff is referred as son of Shivappa. Even on perusal of Ex.P28, it is found that first defendant has admitted that plaintiff is the adopted son of late Shivappa. Exs.P20 to 24 are tax paid receipts. Therefore, voluminous documents are produced by the original plaintiff to establish his status of adopted son. Both the Courts have concurrently held that original plaintiff Nagappa is the adopted son of Shivappa. The Trial Court has answered Issue No.1 relating to adoption in the affirmative. Similarly, Appellate Court has answered Point No.1 relating to adoption in 24 affirmative. These concurrent findings recorded by the Courts below on disputed question of fact are based on the evidence adduced by original plaintiff. The judgment cited by the learned counsel appearing for appellants in the case of Haribai .vs. Baba Anna and another1 in regard to custom prevailing under Bombay School wherein a major person can be taken in adoption is squarely applicable to the present case on hand. Therefore, the substantial question of law formulated at point No.1 is answered in affirmative.
10. IN REGARD TO SUBSTANTIAL QUESTIONS 2 AND 3:
The trial Court while dealing with Issue no.3 which is relating to Will has answered the same in the negative by holding that the Will is not proved. Further, while dealing with Issue No.4 relating to right of first defendant has answered the said issue in the negative. While recording its finding on Issue No.4, the trial Court has answered the same in the negative holding that after the death of Shivappa, 1 AIR 1977 BOM 289 25 Subhadrawwa would not become absolute owner of the suit schedule properties in her own right in terms of Section 14(1) of Hindu Succession Act. Appellate Court while dealing with point No.1 has concurred with the finding of the trial Court thereby holding that the husband of first defendant namely Shivappa Bukitgar adopted the original plaintiff on 15.10.1964 under registered adoption deed. Therefore, the appellate Court also concurred with the finding of the trial Court insofar as the factum of adoption is concerned and the legal status of original plaintiff. But, while dealing with Point No.2, appellate Court has proceeded to answer the same in the affirmative by holding that defendants 2 to 6 have succeeded in proving that Shivappa died testate and further held that the defendants have succeeded in proving due execution of registered Will in favour of his wife Subhadrawwa on 8.7.1966. The finding recorded by the appellate Court on Points 1 and 2 has to be examined by this Court. Having regard to the finding that original plaintiff Nagappa is the adopted son of Shivappa 26 Bukitgar and first defendant, the question that needs to be examined by this Court is as to whether the appellate Court was justified in dismissing the suit in entirety without examining the authority of Shivappa in bequeathing the entire extent when admittedly he took the original plaintiff in adoption on 15.10.1964 as per Ex.P1. The alleged bequeath under the Will is dated 8.7.1966. Therefore, the question that would arise for consideration before this Court is whether bequeath by Shivappa which is subsequent to adoption would divest the rights vested in the original plaintiff Nagappa on account of adoption.
10(a) As per Section 12 of the Act of 1956, it is a trite law that an adopted child shall be deemed to be the child of his/her adoptive father/mother for all purposes with effect from the date of adoption. The adopted child becomes a co- parcener in the adoptive family after severing all ties with his natural family. Thus, the adopted son, for secular and spiritual purposes, continues the line of adoptive father and therefore, 27 the new entrant in the adoptive family is deemed to have been born and on account of adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural born son. The scheme of Sections 11, 12 and 14 of the Hindu Adoption and Maintenance Act is that, the adopted child would become a co- parcener in the adoptive family after severing all ties with his family from which he is adopted. If these legal principles are kept in mind and if the judgment and reasons assigned by the appellate Court are tested, this Court is of the view that the appellate Court has virtually misread the provisions of Section 12 of Hindu Adoption and Maintenance Act 1956. The testamentary succession even if proved, will not affect the right of original plaintiff who was infact adopted by a co-
parcener during his life time. Therefore, plaintiff is entitled to half share in the suit schedule properties dehors the Will executed by Shivappa in favour of his wife i.e. defendant No.1. By holding that first defendant has become absolute owner of 28 the suit schedule properties, the appellate Court has virtually misread the material on record. This is a case where the sole surviving co-parcener during his life-time has adopted a child. The adoption is not by a widow who had a limited right in the suit schedule properties and after coming into force of Hindu Succession Act 1956 Act, her right stood blossomed and thereafter, a widow took in adoption. In a such a situation, the adoption by a widow will not divest the widow from her rights which stood crystalized after commencement of Hindu Succession Act, 1956.
10(b) Be that as it may, the proof of Will has no bearing to the present case on hand. If Will is held to be proved, even then, the Will will be valid to the extent of Shivappa's legitimate share in the suit schedule properties. Even if the Will is negatived, even then, first defendant being a widow is entitled for legitimate half share in the suit schedule properties. Admittedly, the parties are governed under the Bombay School of Law and therefore, defendant No.1 who is 29 the widow of Shivappa is entitled for half share in the suit schedule properties. Therefore, without going into the proof of due execution of Will, this Court is of the view that the alienations made by first defendant in favour of other defendants 2 to 6 would be valid only to the extent of first defendant's legitimate share in the suit schedule properties. Only because there is a bequeath by Shivappa, that in itself, would not take away the valuable rights created in favour of the original plaintiff on account of adoption. The moment he is adopted by a co-parcener, he would automatically become a co-parcener along with his adoptive father and therefore, a right is created in favour of the adopted child. All these significant details are not at all assessed and examined by the appellate Court. The finding of the appellate Court that since defendants have succeeded in proving due execution of Will in favour of first defendant, the original plaintiff would not be entitled to any share in the suit schedule properties is contrary to the provisions of Section 11, 12 and 14 of the Act, 1956. 30 Therefore, the substantial questions 2, 3 and 4 formulated by this Court are to be examined in the light of the aforesaid principles. The proof of Will is of no consequence to the present lis. It is admitted by both the parties that the suit schedule properties are joint family ancestral properties. Therefore, propositus Shivappa along with original plaintiff Nagappa, who is the adopted son constituted an undivided joint Hindu family and the suit schedule properties are co- parcenery properties. Therefore, Shivappa could not have bequeathed the suit schedule properties to the entire extent in favour of his wife i.e. first defendant. Therefore, even if the Will is held to be proved, the Will would be valid only to the extent of legitimate share of Shivappa. Therefore, the substantial questions of law 2 and 3 formulated by this Court relating to Will are of no consequence and therefore, would not survive for consideration. The substantial questions of law No.4 formulated by this Court has to be answered in the 31 negative by holding that the propositus Shivappa had no authority to bequeath the entire suit schedule properties.
11. In view of findings recorded on the aforesaid substantial questions of law, the appellant would succeed in part and hence, I pass the following:
ORDER
(i) The Appeal in RSA.No.1799/2006 is allowed in part and the Cross Objections in RSA.Crob.No.15/2006 is dismissed.
(ii) The suit of the original plaintiff Nagappa is decreed holding that the plaintiffs who are the legal representatives of original plaintiff Nagappa are entitled for half share in the suit schedule properties.
(iii) The first defendant who is the widow of Shivappa is also entitled for half share in the suit schedule properties.
(iv) The purchasers have to work out their equitable rights in the remaining half share of defendant No.1 in terms 32 of priority in regard to the date of sale deeds executed by the first defendant in favour of purchasers.
(v)The impleading applicants are also relegated to work out their equitable rights in final decree proceedings and they are entitled to seek allotment of property purchased by them proportionate to their vendors' share by way of equity.
Accordingly, I.A.No.1/2018 stands rejected.
SD/-
JUDGE *alb/-