You are on page 1of 8

Equivalent Citation: AIR2008Kant47, [2007(114)FLR1109], 2008(1)KarLJ35,

2008(2)KCCRSN152

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

R.F.A. Nos. 260/1994 and 444/1999

Decided On: 03.10.2007

Appellants: Sri Rangappa (since dead reptd. by his L.Rs. Smt. Putta Boramma
W/o. Late Rangappa and Ors.)

Vs.

Respondent: Smt. Channamma W/o. Late Lakkaiah Uruf Guruvaiah


Doddahyda and Ors.

AND

Appellants: Basappa S/o. Late Lakkaiah Uruf Guruvaiahna Doddahyda (since


dead by L.Rs. Devamma W/o. Late Basappa and Ors.)

Vs.

Respondent: Sri Rangappa S/o. Late Lakkaiah Uruf Guruvaiahna Doddahyda


and Ors.

Hon'ble Judges:

Chidananda Ullal and H.N. Nagamohan Das, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: A. Nagarajappa, Adv. in R.F.A. No. 260/1994


and V. Rangaramu, Adv. in R.F.A. No. 444/1999
For Respondents/Defendant: V. Rangaramu, Adv. for R3(a) to R3(f) and P.S.
Manjunath, Adv. for R6 and 7 in R.F.A. No. 260/1994 and T.H. Narayana, Adv.
for R1 and P.S. Manjunath, Adv. for R3 and 4 in R.F.A. No. 444/1999

Subject: Family

Catch Words

Mentioned IN

Acts/Rules/Orders:

Hindu Adoptions and Maintenance Act, 1956 - Sections 5 to 17; Hindu


Succession Act, 1956; Land Acquisition Act

Case Note :

A. HINDU ADOPTION AND MAINTAINCE ACT, 1956-"Dattaka Homa"-Whether


an essential ingredient under the Act-No.-Section 11 of Hindu Adoption and
Maintaince Act, 1956.

B. ADOPTION-Dattaka Homa not essential-Contemporary documents


containing recital regarding adoption-Whether has to be taken as fact to
stabilise adoption-Yes.

C. EVIDENCE-Civil Case-Recital made in documents at undisputed point of


time-Cannot be ignored-Ignoring the same in not proper.

D. ADOPTION-Vesting and diversting of rights-A right vested goes along with


the child given in adoption and not a right which has not vested-Sequence of
adoption-Divests the right of a Co.parcener in a family-Adopted child will not
have any future right in the natural family.
R.F.A. 260 of 1994 allowed.

R.F.A. 444 of 1999 dismissed.

JUDGMENT

H.N. Nagamohan Das, J.

1. These two appeals arise out of the judgment and decree dated 23.9.1993
In O.S. No. 75/1990 passed by the learned Additional Civil Judge at Mysore,
decreeing the suit for partition.

2. Appellant in R.F.A. No. 260/1994 is the 1st defendant and respondents No.
1 to 4 are the plaintiffs and respondents No. 5 to 7, are defendants No. 2 to 4
before the trial court. Appellant in R.F.A. No. 444/1999 is the 3rd plaintiff and
the respondents are the plaintiffs No. 1, 2 and 4 and defendants before the
trial court In this judgment, the parties are referred to their status before the
trial court

3. Plaintiffs contend that common propositor, Lakkaiah, died leaving behind


his wife, three daughters and two sons as his legal representatives to
succeed to his estate the schedule properties. Plaintiff No. 1 is the wife,
plaintiff No. 2, 4 and defendant No. 2 are the daughters. Plaintiff No. 3 and
defendant No. 1 are the sons of deceased Lakkaiah. The 1st defendant
refused to partition and divide the schedule properties and to put the
plaintiffs in separate possession of their respective share and therefore they
filed O.S. No. 75/1990 for partition.

4. Defendants entered appearance before the trial court. Defendant No. 1 is


the contesting defendant and filed written statement inter alia contending
that plaintiff No. 3 was given in adoption to their uncle by name, Rangegowda
and therefore he ceased to be the coparcener of joint family of the 1st
defendant. On the demise of propositor, Lakkaiah, the 1st defendant is the
only sole surviving coparcener and succeeded to the schedule properties and
therefore he contends that plaintiffs are not entitled for share in the schedule
properties. The 1st defendant further contends that the 1st plaintiff, the wife
of common propositor, Lakkaiah, took her share by way of cash and jewellery
and separated from the joint family. He further contends that some of the
schedule properties are acquired by defendants No. 3 and 4 and they are not
available for partition.

5. On the basis of pleadings, trial court framed the following eight issues:

(1) Whether plaintiffs prove that they along with defendants 1 and 2 are
members of joint family and suit schedule p properties are their joint family
properties?

(2) Whether 1st defendant proves that he became the sole surviving
coparcener after the death of his father and became the absolute owner of
the entire properties or contended in para-1 of his written statement?

(3) Whether plaintiffs prove that plaintiff 1, 2 and 4 are entitled to 1/18th
share each and 3rd plaintiff is entitled to 7/18th share in the suit schedule
properties?

(4) Whether the 1st defendant proves that 1st plaintiff relinquished all her
rights in the plaint schedule properties as contended in para 1 of his written
statement?

(5) Whether 1st defendant proves that the claim of the plaintiffs, if any, has
been barred by principles of adverse possession as contended in papra 1 of
his written statement?

(6) Whether plaintiffs prove that acquisition proceedings initiated by the 3rd
and 4th defendants do not bind their share and share of the 2nddefendant as
contended in para 8 of their plaint?
(7) Whether plaintiffs are entitled for partition by metes and bounds and
separate possession of their share as claimed?

(8) To what relief plaintiffs are entitled?

6. Plaintiffs examined two witnesses as PWs. 1 and 2 and got marked Exs.P1
and P2. Defendants examined two witnesses as DWs.1 and 2 and got marked
Exs.D1 to D3. Trial court after hearing both the parties and on appreciation of
the pleadings, oral and documentary evidence on record concludes that the
defendants have failed to prove and establish that plaintiff No. 3 was given in
adoption to his uncle, Rangegowda. Trial court further held that on the
demise of common propositor, Lakkaiah, plaintiff No. 3 and defendant No. 1
succeeded to the schedule properties as coparceners. On a notional partition,
trial court allotted 1/3rd share each to the propositor, Lakkaiah, plaintiff No. 3
and defendant No. 1. On the demise of Lakkaiah, plaintiffs and defendants
No. 1 and 2 succeeded to the 1/3rd share of Lakkaiah and on that basis,
passed the impugned judgment and decree declaring that plaintiffs No. 1, 2
and 4 are entitled for 1/8th share each and plaintiff No. 3 is entitled for
7/18th share. Hence, the 1st defendant filed RFA No. 260/1994 questioning
the entire judgment and decree of trial court Plaintiff No. 3 filed RFA No.
444/1999 in so far as it relates to not passing a decree against defendants
No. 3 and 4, who have acquired a portion of suit schedule property.

7. Heard the arguments on both side and perused the entire appeal papers.

8. Trial court held that defendant No. 1 has failed to prove and establish that
plaintiff No. 3 was given in adoption to Rangegowda mainly on the ground
that there is no pleading and evidence of giving and taking plaintiff No. 3 in
adoption by conducting a ceremony called 'Dattaka Homa'. Though the trial
court noticed the registered sale deed - Ex.D1 and registered settlement
deed - Rx.D2, wherein there is a reference to the adoption of plaintiff No. 3 in
favour of Rangegowda refused to rely upon the two documents on the ground
that by consent of the parties, adoption cannot be created. It is necessary at
this stage to notice the relevant provisions of law governing adoption among
Hindus. Prior to the enactment of Hindu Adoptions and Maintenance Act,
1956 only boys can be given and taken in adoption and not the girls. Only
husband can give and take a boy in adoption and not the wife. Any adoption
of boy shall be among their own caste and not an outsider. With regard to
ceremony of giving and taking the boy in adoption there was no uniform
performance of 'Datta Homa'. There was no clarity and certainty with regard
to vesting and diverting of any property of adoptive child resulting in many
voluminous litigations. As an answer to some of these problems, the
parliament enacted the Hindu Adoption and Maintenance Act, 1956 (for short
the 'Act')

9. Sections 5 to 17 in Chapter II of the Act deals with Adoption. Section 6


specifies the requisite of a valid adoption. Section 7 specifies the capacity of
a male Hindu and Section 8 specifies the capacity of female Hindu to take in
adoption. Section 9 specifies the persons capable of giving in adoption.
Section 10specifies persons, who may be adopted. Section 11 specifies the
other condition for a valid adoption. Proviso to Section 11 of the Act, 1956
specifies that perform of 'Dattaka Homa' shall not be essential to the validity
of adoption. Thus it is clear that even in the absence of proof of Dattaka
Homa, there can be adoption subject to the satisfaction of other conditions
under Sections 6 to 11 of the Act. Merely because there is no pleadings and
proof relating to Dattaka Homa, it cannot be said that there is no valid
adoption. The reasoning of the trial court that defendant No. 1 has failed to
plead and prove the ceremony of Dattaka Homa and therefore there is no
adoption of plaintiff No. 3 to Rangegowda, is unsustainable in law.

10. In the instant case, the adoptive father, Rangegowda, executed a


registered settlement deed dated 20.11.1961-Ex.D2 in favour of plaintiff No.
3. In this registered settlement deed - Ex.D2, plaintiff No. 3 is described as
adopted son of Rangegowda. Plaintiff No. 3 is a party to this registered
settlement deed. Plaintiff No. 3, who is examined as PW.2, has not disputed
the registered settlement deed - Ex.D2 wherein he was described as adopted
son of Rangegowda. Further on the strength of registered settlement deed -
Ex.D2, plaintiff No. 3 sold a portion of property acquired by him under a
registered sale deed dated 16.1.1970 - Ex.D1 in favour of one Sri Rangappa.
In this registered sale deed -Ex.D1, plaintiff No. 3 described himself as
adoptive son of Rangegowda. These two registered documents - Exs.D1 and
D2 have come into existence at the earliest point of time when there was no
dispute between the parties on the question of division of schedule
properties. Further, these two documents and the recitals contained therein
are not disputed by any of the parties to the suit. In addition to these
documentary evidence, plaintiff No. 3, who is examined as PW.2, in his
deposition admitted that he was residing some time with Rangegowda.
Further it is admitted that Rangegowda did not had any children. Trial court
though noticed these documentary and oral evidence on record, committed
an error in holding that adoption of plaintiff No. 3 is not proved and
established. This admitted documentary and oral evidence on record clearly
establishes the fact that plaintiff No. 3 is the adopted son of Rangegowda. On
adoption, plaintiff No. 3 ceased to be the coparcener of joint family of his
natural parents. Therefore, plaintiff No. 3 is not entitled for any share in the
schedule properties belonging to the natural father, Lakkaiah. It is not the
case of plaintiff No. 3 that the schedule property or any portion of it vested in
him prior to his adoption to Range Gowda. Trial court committed an error in
passing the decree declaring that plaintiff No. 3 is entitled for 7/18th share in
the schedule properties.

11. It is not in dispute that the schedule properties are the ancestral
properties of common propositor, Lakkaiah. Plaintiffs contend that Lakkaiah
died subsequent to the year 1956. Defendant No. 1 contends that his father,
Lakkaiah, died in the year 1955. But defendant No. 1 specifically admits in his
evidence deposed on 7.8.1991 that his father, Lakkaiah, died 34 years back.
On the basis of this admission, even according to defendant No. 1, his father,
Lakkaiah, died in the year 1957. Further DW. 2 in his evidence recorded on
7.8.1991 admits that common propositor, Lakkaiah, died 25 years back. PW.
1 - wife of common propositor, Lakkaiah, in her deposition admitted that in
the year 1959 her husband, Lakkaiah, died. Except this oral evidence on
record, there is no other evidence to show that Lakkaiah died prior to the
year 1955. Therefore, the available oral evidence on record clearly
establishes the fact that the common propositor, Lakkaiah, died subsequent
to coming into force of Hindu Succession Act, 1956.

12. Admittedly the schedule properties are the ancestral properties of


common propositor, Lakkaiah. Since plaintiff was given in adoption to
Rangegowda, he ceased to be the coparcener of joint family of Lakkaiah and
defendant No. 1 On a notional partition, Lakkaiah is entitled for half share and
defendant No. 1 is entitled for the remaining half share in the schedule
properties. On the demise of Lakkaiah, his half share in the schedule
properties will devolve upon his wife and children except plaintiff No. 3. On
this basis, the shares are to be worked out between the plaintiffs and
defendants.

13. It is not in dispute that defendants No. 3 and 4 acquired a portion of


schedule property under the Land Acquisition Act. Defendant No. 1 claiming
to be the sole surviving coparcener has withdrawn the compensation
awarded by the Land Acquisition Officer for acquiring a portion of schedule
property. Under the impugned judgment and decree, trial court declared that
the respective share holders are entitled to claim money from defendant No.
1 alone out of the compensation amount received by him from defendants
No. 3 and 4. The grievance of plaintiff No. 3 in Appeal No. 444/1999 is that he
is entitled for the compensation awarded by the defendants No. 3 and 4, who
are the acquiring Authorities and a liability ought to have been fixed on them.
Since we have held that plaintiff No. 3 is the adopted son of Rangegowda and
ceases to be the member of joint family of common propositor, Lakkaiah and
defendant No. 1, he will not get any share in the schedule properties and as
such, his appeal is liable to be dismissed. Further in O.S. No. 75/1990, there is
no prayer questioning the acquisition of a portion of schedule properties by
defendants No. 3 and 4 nor the payment of compensation to defendant No. 1.
In the absence of any prayer in the suit, it is not permissible under law to
grant relief claimed by plaintiff No. 3 in his R.F.A. No. 444/1999. On this
ground also, the appeal filed by plaintiff No. 3 is liable to be dismissed.

For the reasons stated above, the following:

ORDER

i) R.F.A. No. 260/1994 is hereby allowed.

ii) R.F.A. No. 444/1999 is hereby dismissed.

iii) The impugned judgment and decree dated 23.9.1993 in O.S. No. 75/1990
passed by the learned Civil Judge at Mysore, is hereby set aside.

iv) O.S. No. 75/1990 is decreed in part declaring that plaintiffs No. 1, 2 and 4
and defendant No. 2 are entitled for 1/10th share each and defendant No. 1 is
entitled for 1/6th share in the schedule properties. Plaintiffs No. 1, 2, 4 and
defendant No. 2 are entitled to workout their entitlement as per the
declaration made above in the final decree proceedings including their share
in the compensation amount in the hands of defendant No. 1. Ordered
accordingly.

You might also like