Professional Documents
Culture Documents
2008(2)KCCRSN152
Appellants: Sri Rangappa (since dead reptd. by his L.Rs. Smt. Putta Boramma
W/o. Late Rangappa and Ors.)
Vs.
AND
Vs.
Hon'ble Judges:
Counsels:
Subject: Family
Catch Words
Mentioned IN
Acts/Rules/Orders:
Case Note :
JUDGMENT
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
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?
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')
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.
ORDER
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.