1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA Dated this the 21st day of October, 2011 BEFORE: THE HON’BLE MR JUSTICE D V SHYLENDRA KUMAR Regular First Appeal No 1706 of 2005 [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 BHAKARE AGE: 28 YEARS 0CC: AGRICULTURIST R/O SARASAMBA VILLAGE 2 ‘1: ALAND DIST: GULBARGA ... APPELLANTS [By M/s A M Nagaral & Ananth Jahagirdar, Advs for M/s Basavaprabhu S PaUl & Associatesi AND: SANGAMESHWAR ADOPTED S/O CHANDANNA BAKARE 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 MADDIVASTHI BHAVANI PETH NEAR DATI’A MANDIR SOLAPUR-413 002 4. SUGALABAI W/O GURLINGAPPA DHOTRE AGE: MAJOR, 0CC: HOUSEHOLD R/O H.NO.86/216 MADDIVASTHI BHAVANI PETH 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 ORDER 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 DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:- JUDGMENT This Regular First Appeal under Section 96 of Code of Civil Procedure is by the defendants 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, which 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 family 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 sharing 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 husband 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 Bhakare - brother of Chandanna. Defendants 1 to 4 have contended that the judgment and decree passed by the trial court is not sustainable in law; that there have been errors of not only questions of law but also the manner in which 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 first 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 plaintiffs, was much more than 15 years of age and therefore the trial court could not have accepted it as a valid adoption 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 entitled 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 interference, 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 daughter 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 plaintiff and had been given in marriage to Chandanna, after his first wife Chandavva deserted him and married another person namely Anneppa Mudukanna and had lived separately and after the marriage of Neelabai with Chandanna, they had a daughter by name Gurubai; that her husband Chandanna died in the year 1950 or 1954; that after the death of Chandanna, Neelabai continued to reside in the family 9 house of Bhakare family and was being taken care of her brother-in-law Revanna — elder brother of Chandanna; that Revanna also died on 26-1-1993, whereafter Revappa’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 plaintiff 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 Maharashtra, the maternal home of Neelabai and thereafter in spite of the demands of plaintiffs for their legitimate share i.e. share of Chandanna in the joint family properties, defendants, particularly defendants 1 to 4, who were in the possession and vahivat of the properties did not oblige 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 plaintiffs: Shivalingappa I3hakare V 1) Kallawwa 2) Revappa 3) Chandanna Bhimbai Nee abai + (wife) (wife)” plff. -2 1) Anneppa 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 Hanarnanthraya 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 defendant 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 plaintiff Neelabai and Chandanna and 18th and 19th defendants being children ofThayavva w/o Revanasiddappa Ganapathi, who In turn is daughter of Sharanavva d/o first wife of Shlvallngappa, the propositor. 7. While defendants 1 to 5 contested the suit claim 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 while 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 have taken in adoption by the second plaintiff and therefore pleaded 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 place between Revappa and the first defendant Shivasharanappa - father and son — during the year 1982; that assuming for argument’s sake that Chandanna had taken 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 Succession 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 dismissed. 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 Chandanna, his other brother Revappa had taken care of second plaintiff and that Revappa performed the marriage of 1 7th defendant during his life time; that these defendants being 4 14 granddaughters of propositor Shivalingappa being grandsons of Shivalingappa’s daugther Kallawwa and 1 7th defendant Gurubai being granddaughter of propositor through his son Chandanna, whom Neelabai married and therefore while the plaintiffs may be given their 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 court 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 plaint(fs prove that defendant No-i 7 Gurubai is the daughter of said deceased Chandanna? 5. Whether the plaintfs prove that plaintiff No-2 Neelabai was having pre-existing right of maintenance over the suit properties? 6. Whether the plaintff 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 havefallen 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? 16 12, 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 prayedfor? 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 Bhimrao Mudukanna as PW6 and three other witnesses, supporting the plaintiff. 17 Documentary 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 extracts 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 great 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 judge 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-defendants 1 to 4 and Sri P N Shah along with M/s I R Biradar, G G Chagashetty, B V Jalde, R J Bhusare, S M Chandrashekar, learned counsel for respondents 1 and 2 and Sri Laxmikanth T Pujari, learned counsel for the respondents 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 made good on available evidence that she was the legally wedded wife of Chandanna; that the plaintiffs had also not made good that the first plaintiff had been taken in a valid adoption 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 scope 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 never 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 widow vis-à-vis family properties. who had acquired some right or interest under the 1937 Act and had sought 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 judgment 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 Hindu 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 amendment effected to the Succession Act, particularly the amendment to Section 6 as per the Central Act No 39 of 2005, conferring coparcenary rights in favour of daughters in joint family, if is also applicable for effecting a partition 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 about her marriage with Chandanna, her residence in Sarsamba village and circumstances under which she was forced 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 second plaintiff living as her neighbour and wife of Chandanna, and also the evidence of PW6, second husband of first wife of Chandanna, who has spoken not only about the separation of Chandanna’s first wife from Chandanna and PW6 had married that lady and also that to his knowledge 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 adoption an heir and the date of adoption relates back to the date of death of member of the joint family and the adoption is deemed to be by member of the joint