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Friday, November 25, 2016

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 Shri Sharnappa Gaded in 1957 would not be disturbed because of adoption of defendant no.1, which had taken place on 9th February, 1971. Thus, Smt. Sharnappa had become absolute owner of 1/4th share and Smt. Nagamma, the mother of the plaintiff had also become an owner of 1/4th share of the property belonging to late Shri Sharnappa Gaded.SAHEB REDDY Vs. SHARANAPPA & ORS.

                                             NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 901 OF 2014



Saheb Reddy                                 ....Appellant


                                VERSUS

Sharanappa and Ors                               ….Respondents





                                J U D G M E N T

ANIL R. DAVE, J.

1.    The appellant - original defendant no.1 is aggrieved by  the  judgment
dated 15th December, 2011 of the High Court of Karnataka, Circuit  Bench  at
Gulbarga, rendered in Regular Second Appeal No. 7310 of  2009,  whereby  the
High Court has allowed the appeal of the appellant herein by  setting  aside
the judgment and decree of the first  appellate  Court  dated  31st  August,
2009 and restored the judgment and decree dated 9th February, 2007  rendered
by the trial Court.



2.    For the purpose of convenience, the parties  to  the  litigation  have
been referred to as they  were  before  the  trial  Court.   As  the  matter
pertains to partition of the family  property,  the  following  chart  would
give a better idea of the relationships among the parties:

                               Bheemanna Gaded
     Smt. Sharnappa          Shri Sharnappa

               Saheb.                        Smt.                       Smt.
Smt.
        Reddy                Kyadigamma         Nagamma     Sarojamma
{Adopted Son     (D-1)}
                         Channamma
                                (D-2)


     Sharnappa  Neelamma    Vijaylaxmi     Malamma
       (Plaintiff)       (D-4)            (D-5)              (D-6)



               D-3                        D-7                            D-8
D-9

3.     The brief facts, which are necessary for proper appreciation  of  the
dispute among the parties, in a nutshell, are as follows:-

The plaintiff-Respondent No.1 herein, son of Smt. Nagamma  and  grandson  of
late Shri Sharnappa Gaded, filed Civil Suit OS No. 22 of 2005 in  the  Court
of  Civil  Judge  (Senior  Division),  Yadgir  for  partition  and  separate
possession of his share by metes and bounds and with a prayer to put him  in
possession of the suit  property  and  for  a  declaration  that  registered
adoption deed dated 9.2.1971 is null and void and  for  other  consequential
reliefs.

4.    The case of the plaintiff was that Shri Sharnappa Gaded, son  of  Late
Bheemanna Gaded, was the last  holder  of  the  suit  properties,  who  died
intestate in 1957 and had left behind him his wife Smt. Sharnappa and  three
daughters namely Smt. Kyadigamma (defendant No. 4), Smt. Nagamma  (defendant
No. 5) and Smt. Sarojamma (defendant No. 6).

5.    On the  demise  of  Shri  Sharnappa  Gaded  in  the  year  1957,  suit
properties had devolved upon his wife Smt.  Sharnappa  and  the  aforestated
three daughters in equal shares and the female heirs became absolute  owners
of their respective  shares.  No  partition  was  effected  among  the  four
sharers and in the course of time, three daughters died during the  life  of
their mother Smt.  Sharnappa,  leaving  behind  their  respective  undivided
share in the suit properties, which devolved upon their respective heirs.

6.    Upon death of Smt. Nagamma, her  undivided  share  devolved  upon  the
plaintiff along with his three sisters, being  defendant  nos.4,  5  and  6.
Likewise, it was contended that undivided 1/4th share of Smt. Kyadigamma  in
suit properties  devolved  upon  her  only  daughter  named  Smt.  Channama-
defendant no. 2, who is the wife of  the  present  appellant  and  undivided
share of  1/4th  of  Smt.  Sarojamma  devolved  upon  defendant  no.  3  and
defendant nos. 7 to 9. The plaintiff had  further  pleaded  that  he  was  a
member of the undivided family and  after  death  of  his  grandmother  Smt.
Sharnappa, difference arose among  the  family  members  and  therefore,  he
demanded  his  legitimate  share  on  9.12.2004  from  the  defendants   but
defendant No.1 refused to give any share to him.  It was  further  contended
that defendant No.1, the present Appellant, claimed to have been adopted  by
late Smt. Sharnappa, but, in fact, there was no execution  of  any  adoption
deed and requisite ceremony for adoption of  defendant  no.1  had  also  not
been performed and therefore, defendant no.1 had no right in  the  property.
It was  further  submitted  that  defendant  no.1  married  defendant  no.2,
daughter of Smt.  Sharnappa  and  therefore,  defendant  no.1,  the  present
Appellant, was trying to usurp the  entire  suit  property  by  denying  the
share of the plaintiff.

7.    On the other hand, it had been submitted on behalf of  defendant  no.1
that the plaintiff was not in possession of the suit properties  along  with
other defendants as a member of an undivided family. It had  been  submitted
that as late Smt. Sharnappa had no male issue,  she  had  adopted  defendant
no.1, who had married defendant no.2.  It had been  further  submitted  that
as defendant no.1 was an adopted son of Smt. Sharnappa, defendant  no.1  had
performed all religious ceremonies including the rituals of  making  payment
to other defendants and other female members upon death of  Smt.  Sharnappa.
It had been submitted that Smt. Sharnappa  had  adopted  defendant  no.1  by
virtue of adoption deed dated  9th  February,  1971,  which  had  been  duly
registered and from the date of adoption, defendant no.1 had started  living
with his adoptive mother and had also enjoyed the suit property as an  owner
thereof.  The property had also been mutated in the name of  defendant  no.1
and the said mutation  had  also  been  challenged.  Alternatively,  it  was
submitted that as defendant no.1 was in possession of the suit property  for
more than 34 years, he had also become the owner by  adverse  possession  of
the suit property.

8.    The trial Court by a judgment and decree dated 9th February, 2007,  in
view of the registered adoption deed and upon  considering  other  evidence,
came to the conclusion that defendant  no.1  was  an  adopted  son  of  Smt.
Sharnappa and held that the adoption of defendant no.1 would not  take  away
right and interest of other members of the family, which they  had  received
prior to the date of adoption by virtue of the provisions of  Section  12(c)
of the Adoption Act.  Thus, the trial Court decreed  the  suit  and  ordered
that the plaintiff was entitled to 1/16th share in the suit property as  the
property of late Shri Sharnappa Gaded had  been  divided  into  four  parts.
One part was inherited by his widow – Smt. Sharnappa  and  three  parts  had
been inherited by his three daughters,  named  hereinabove.   Smt.  Nagamma,
being one of the daughters had received 1/4th share and the plaintiff  being
one of the four children of late Smt. Nagamma, had received 1/4th  share  of
Smt. Nagamma and thus the plaintiff was entitled  to  1/16th  share  in  the
suit property.

9.    Being aggrieved by  the  judgment  and  decree  of  the  trial  Court,
defendant no.1 preferred First Appeal  No  30/2007  before  the  Fast  Track
Court, Yadgir (hereinafter referred to as the “first appellate Court”).  The
plaintiff also preferred an appeal contending that  in  addition  to  1/16th
share, he was also entitled to  a  further  share  in  1/4th  share  of  his
deceased grandmother, Smt. Sharnappa.

10.   The first  appellate  Court,  vide  judgment  and  decree  dated  31st
August, 2008 dismissed  the  appeal  filed  by  defendant  no.1  and  partly
allowed the appeal filed by the plaintiff by giving the  plaintiff  and  his
sisters  1/4th  share  in  their  mother’s  1/4th  share  in  all  the  suit
properties as granted by the trial  Court  and  in  addition  thereto  their
mother’s 1/4th share in  the  share  of  Smt.  Sharnappa  in  all  the  suit
properties and came to the conclusion that the trial Court did not  consider
the fact that Smt. Sharnappa  had  died  intestate  and  by  virtue  of  the
provisions of Section 15 of the Hindu Succession  Act,  1956  (herein  after
referred to as “the Succession Act”) all the family members  had  got  share
in the properties of late Smt. Sharnappa.  The  first  appellate  Court  had
held that defendant no.1, who had been adopted on 9th February,  1971  would
get 1/4th share of his adoptive mother’s  property,  whereas  the  plaintiff
would get not only 1/16th share of the property, but also  1/64th  share  of
the property of Smt. Sharnappa for the reason that Smt.  Sharnappa  had  one
adopted son and three daughters and therefore, the plaintiff would,  at  the
first instance, get 1/4th share of Smt. Nagamma, the property which she  had
inherited from her mother Smt. Sharnappa and further 1/64th share  from  the
property  of  Smt.  Sharnappa  (grandmother)  as  Smt.  Sharnappa  had  died
intestate.  Thus, the plaintiff was entitled to 5/64th  share  in  the  suit
property.

11.       Being aggrieved by the judgment  of  the  first  appellate  Court,
defendant no.1 filed Regular Second Appeal  no.7310 of 2009 before the  High
Court. The High Court by the impugned  judgment  accepted  the  said  second
appeal by setting aside the  judgment  of  the  first  appellate  Court  and
restored the judgment and decree of the trial Court.

12.   We have heard the learned counsel at length, on facts as  well  as  on
legal issues.  The issues involved in  the  instant  case  also  pertain  to
facts.   The  core  question  which,  in  our  opinion,   arises   for   our
consideration  in  this  appeal  is  whether  the  High  Court  has  rightly
allocated share of the properties among the  family  members  in  accordance
with the Hindu Succession Act, 1956.

13.   It is undisputed that late Shri Sharnappa died intestate in  the  year
1957 leaving behind him his wife Smt. Sharnappa and three  daughters  namely
Smt. Kydigamma, Smt. Nagamma and  Smt.  Sarojamma.   In  the  instant  case,
there was no coparcenary, as Late Shri Sharnappa was the  sole  male  member
in the family.  In the circumstances, upon his  death  his  properties  were
inherited by his widow and three daughters.

14.   At the time when Shri Sharnappa died in 1957, defendant no.1  was  not
in the picture as he was adopted by Smt. Sharnappa on  9th  February,  1971.
By virtue of proviso to Section 12 of the Adoption  Act,  an  adopted  child
cannot divest any person of any estate which vested in  him  or  her  before
the adoption.  Thus, the property of late Shri  Sharnappa  which,  upon  his
death in 1957, had vested in his widow and three  daughters,  would  not  be
disturbed by virtue of subsequent adoption of defendant no.1.

15.   So far as inheritance of the suit property in favour of the  plaintiff
is concerned, in our opinion, the first appellate Court was correct  to  the
effect that the plaintiff would inherit not only  property  of  his  mother,
Smt. Nagamma along with his three sisters, but he would also have  share  in
the properties of his grandmother, late Smt. Sharnappa.  Smt. Sharnappa  had
also not prepared any Will and as  she  had  died  intestate,  her  property
would be divided among her adopted son i.e. defendant no.1 and heirs of  her
three daughters, who had predeceased Smt.  Sharnappa.   Smt.  Sharnappa  was
having 1/4th share in the entire property, which she had inherited from  her
husband late Shri Sharnappa.  One of the daughters being Nagamma,  heirs  of
Nagamma would inherit 1/4th share of property  of  Smt.  Sharnappa  and  the
plaintiff being one of the four  heirs  of  late  Smt.  Nagamma,  would  get
1/64th share from the property of his grandmother Smt. Sharnappa.

16.   As originally Smt. Sharnappa was to get 1/4th share from the  property
of Shri Sharnappa, from her 1/4th share, the properties would  be  inherited
by her adopted son and  heirs  of  her  predeceased  daughters.   As  stated
hereinabove, the plaintiff would be getting 1/16th share in the property  of
Smt. Nagamma and 1/64th share upon death of Smt.  Sharnappa  and  thus,  the
plaintiff would be getting  5/64th  share  in  the  suit  property,  whereas
defendant no.1 would get 1/16th share of the suit property.

17.   Upon appreciation of the evidence, it was found  by  the  trial  Court
that the adoption was valid because that  was  by  virtue  of  a  registered
adoption  deed  and  the  said  deed  had  been   duly   proved.    In   the
circumstances, we do not think it necessary to  discuss  the  said  evidence
again.  We confirm the view of the first appellate Court  that  the  adopted
son viz. defendant no.1 would not divest any person  in  whom  the  property
had been vested prior to adoption. Section 12 of  the  Hindu  Adoptions  and
Maintenance Act, 1956 reads as under :-

“12 Effects 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.”

18.   Looking at the aforestated provisions 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 Shri Sharnappa Gaded in 1957 would not  be
disturbed because of adoption of defendant no.1, which had  taken  place  on
9th February, 1971.  Thus, Smt.  Sharnappa  had  become  absolute  owner  of
1/4th share and Smt. Nagamma, the mother of the plaintiff  had  also  become
an owner of 1/4th share of the property belonging  to  late  Shri  Sharnappa
Gaded.

19.   In view of the aforestated legal position, upon  hearing  the  learned
counsel, we are of the view that the High Court had committed  an  error  by
setting aside the judgment and decree  of  the  first  appellate  Court  and
therefore, we set aside the impugned judgment and restore the  judgment  and
decree of the first appellate Court.

20.   The appeal is, accordingly, allowed with no order as to costs.


                                                             .…………………………….J.
                                          (ANIL R. DAVE)



                                                             ……………………………..J.
                                    (L. NAGESWARA RAO)
NEW DELHI
NOVEMBER 16, 2016.

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