Dismissed

Sri.T.Rathan Since Dead by His Lrs v. Chikkamutha Since Dead by His Lrs

Karnataka HC14 Dec 2012RFA/1216/2005

Case brief

AI extract

What is this about?

An appeal against the dismissal of a partition suit. The Court held that children of an adopted son cannot claim a share in the natural father's coparcenary property, relying on Supreme Court authorities interpreting Section 12 of the Hindu Adoption and Maintenance Act, 1956.

What did the court decide?

The appeal is dismissed. The appellants are not entitled to any relief.

Sri.T.Rathan Since Dead by His Lrs Vs Chikkamutha Since Dead by… — Partition | Karnataka HC (2012)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

¶3

DATED THIS THE 14TH DAY OF DECEMBER 2012

¶4

PRESENT

¶5

THE HON'BLE MR. JUSTICE D.V.SHYLENDRA KUMAR

¶6

AND

¶7

THE HON'BLE MR. JUSTICE B.MANOHAR

¶8

RFA No.1216/2005(SP)

¶9

BETWEEN :

¶10

SRI.T.RATHAN SINCE DEAD BY HIS LRS

¶11

1(a) SMT.SUMITHRA, AGED ABOUT 53 YEARS, W/O.T.RATHAN.

¶12

1(b) R.VIJAYALAKSHMI AGED ABOUT 31 YEARS, D/O.T.RATHAN.

¶13

1(c) R.HAMSAKUMARI, AGED ABOUT 29 YEARS, D/O.T.RATHAN.

¶14

1(d) R.NALINI, AGED ABOUT 27 YEARS, D/O.T.RATHAN.

¶15

1(e) R.JAYAKUMAR, AGED ABOUT 25 YEARS, S/O.T.RATHAN.

¶16

1(f) R.DUSHYANTHKUMAR, AGED ABOUT 18 YEARS, S/O.RATHAN.

¶17

¶18

ALL ARE RESIDING AT NO.5, M.V.GARDEN, 7TH MAIN, DOBHI GHAT, ULASOOR, BANGALORE.

¶19

SMT.T.KAMALAMMA S/O LATE THIMMARAYA AGE 62 YEARS R/A.NO.5, M.V.GARDEN, 7TH MAIN, DOBHI GHAT, ULSOOR, BANGALORE-560 008. ...APPELLANTS

¶20

(BY SRI.M.NARAYANA REDDY, ADVOCATE)

¶21

AND:

¶22

1 CHIKKAMUTHA SINCE DEAD BY HIS LRS.

¶23

1(a) SRI.C.MUNIYAPPA, S/O.LATE CHIKKAMUTHA AGED ABOUT 57 YEARS,

¶24

1(b) SRI.C.THIMMAPPA, S/O.LATE CHIKKAMUTHA, AGED ABOUT 53 YEARS,

¶25

BOTH RESIDING AT ANJANAPURA VILLAGE AND POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK.

¶26

2 SHAMBAIAH MAJOR IN AGE M/S.SIDDARTHA TOURS AND TRAVELS 973/708, NEW THIPPASANDRA MAIN ROAD BANGALORE-560 075.

¶27

¶28

T.MADHUSUDHAN MAJOR IN AGE CHARTERED ACCOUNTANT NO.18/1, 2ND FLOOR, P G GOPAL BUILDING, LALBAGH FORT ROAD BANGALORE-4.

¶29

DR.H.N.NAGRAJ S/O.NANDEESH MAJOR IN AGE NO.259, 33RD CROSS KANAKAPURA MAIN ROAD VII BLOCK, JAYANAGAR BANGALORE-560 082. ...RESPONDENTS

¶30

( BY SRI.C.V.NAGESH, ADV FOR R1 & FOR LRS OF R1 (A-B), R2 & R3 SERVED)

¶31

RFA FILED U/S 96 CPC AGAINST THE JUDGMENT AND DECREE DATED:8.4.2005 PASSED IN OS.NO. 313/1998 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.), BANGALORE RURAL DIST, BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPERATE POSSESSION.

¶32

THIS APPEAL HAVING BEEN HEARD AND RESERVED AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.MANOHAR.J., DELIVERED THE FOLLOWING: -

¶33

JUDGEMENT

¶34

Appellants are the plaintiffs in O.S.No.313/1998. Being aggrieved by the judgment and decree dated 8-4-2005 passed by the II Additional Civil Judge (Sr.Dn.), Bangalore Rural District, wherein

¶35

the suit filed by the plaintiffs for partition and separate possession was dismissed, the plaintiffs have filed this appeal.

¶36

¶37

The plaintiffs filed a suit seeking for partition and separate possession of half share by metes and bounds in respect of the suit schedule property. In the plaint, it was contended that one A.K.Thimma was the propositus of the property. He had two sons by name Thimmaraya and Chikkamutha. Plaintiffs are the children of Thimmaraya and first defendant is the brother of Thimmaraya. It is the case of the plaintiffs that, Thimmaraya died leaving behind the plaintiffs as his legal heirs. After the death of Thimmaraya, the plaintiffs and defendant No.1 became the members of Hindu Joint Family and they are in joint possession and enjoyment of the suit schedule property. In spite of the request made by the plaintiffs, the first defendant denied their half share in respect of the suit schedule property. The total extent of the land bearing Sy.No.49/5 situated at Anjanapura village, Uttarahalli Hobli, Bangalore South Taluk is 04 acres. The plaintiffs are entitled for half share. The first defendant in order to defeat the rights of the plaintiffs over the property, trying to alienate the suit schedule property in favour of defendants 2 to 4 and they are trying to form a private layout. Further, it was averred in the plaint that the plaintiffs had filed a suit in O.S.No.79/1983 on the file of the Principal II Munsiff, Bangalore seeking for declaration and possession in respect of land bearing No.5, 29, 58/2 and 62

¶38

¶39

situated at Anjanapura village. The said suit came to be dismissed by the Trial Court on 23-3-1994 against the said judgment and decree, a regular appeal in R.A.No.48/1998 was filed by the plaintiffs which is pending consideration before the Civil Judge (Sr.Dn.), Bangalore. The property claimed in that suit is different from the property claimed in the present suit and sought for half share in the suit schedule property.

¶40

The first defendant entered appearance and filed written statement inter alia contending that the suit filed by the plaintiffs is not maintainable, since the plaintiffs are not the children of Thimmaraya and they are not entitled for any share in the suit schedule property. The first defendant admitted that A.K.Thimma is the owner of the suit schedule property and he has got two sons by name Thimmaraya and Chikkamutha. Thimmaraya married one Kempamma, she predeceased her husband and they had no issues. Hence, the first defendant became the sole surviving son of A.K.Thimma succeeding the estate of A.K.Thimma. The revenue entries were mutated in the name of the first defendant from the year 1984-85. The plaintiffs are not the children of Thimmaraya and Kempamma and they are not entitled for any share in the

¶41

¶42

properties. Hence, he sought for dismissal of the suit.

¶43

On the basis of the pleadings of the parties, the Trial Court framed the following issues:

¶44

(i) Whether the plaintiffs prove that they are sons of Thimmaraya and grandsons of late A.K.Thimma?

¶45

(ii) Whether the plaintiffs prove that they and the defendant are in joint possession and enjoyment of schedule property subsequent to the death of their father Sri.Thimmaraya?

¶46

(iii) Whether the 1st defendant proves that Thimmaraya had married one Kempamma and she predeceased her husband and they had no issues?

¶47

(iv) Whether the 1st defendant proves that he being the only surviving son of late A.K.Thimma has succeeded to his estate and enjoying the schedule property as absolute owner thereto?

¶48

(v) Whether the valuation of the suit is proper and court fee paid is sufficient?

¶49

(vi) Whether the plaintiffs are entitled for the relief of partition and separation of their alleged half share in the schedule property?

¶50

(vii) What decree or order?

¶51

¶52

The plaintiffs in order to prove their case, the first plaintiff got himself examined as P.W.1 and got marked the documents as Ex.P1 to Ex.P14. The Power of attorney of the first defendant was examined as DW.1 and examined one more witness as DW.2 and got marked the documents as Ex.D1 to Ex.D20. The defendants 2 to 4 have not filed any written statement nor lead any evidence.

¶53

The Trial Court after considering the oral and documentary evidence adduced by the parties came to the conclusion that the plaintiffs are the children of Late Thimmaraya. However, they have failed to prove that they were in joint possession of the suit schedule property subsequent to the death of their father Thimmaraya on the basis of Ex.P10 and Ex.P13. The Trial Court further held that in O.S.No.79/1983, the plaintiffs claim that the father of the plaintiffs was adopted by late Muniga son of Shambuga under the registered Adoption Deed of the year 1933, thereafter, Muniga executed a Will in favour of Thimmaraya on 30-7-1933 and on the basis of the said Will, they claimed right over the property in O.S.No.79/1983. Hence, the father of the plaintiffs ceased to be the member of the joint family of the first defendant in view of the registered adoption deed of the year 1933 and the plaintiffs are not entitled for any share

¶54

¶55

in the properties. Accordingly, held issue Nos.1 and 5 in the affirmative and issue Nos.2 to 4 and 6 in the negative. Consequently dismissed the suit filed by the plaintiffs. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiffs have filed this appeal.

¶56

Sri.M.Narayana Reddy, learned counsel appearing for the appellants contended that the judgment and decree passed by the Trial Court is contrary to law. The original propositus A.K.Thimma had two sons by name Thimmaraya and Chikkamutha. The records produced by the appellants clearly disclose that the plaintiffs are the children of Thimmaraya. The Trial Court held that the plaintiffs are the children of Thimmaraya, however denied partition in the suit schedule property solely on the ground that the father of the plaintiffs Thimmaraya was taken on adoption by Muniga. Hence the plaintiffs are ceased to be the members of the joint family of the first defendant is contrary to law. The Trial Court misunderstood and misread Section 12 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as ‘the Act’). Section 12(b) of the Act contemplates that any property which vests in the adopted child before adoption shall continue to best in such person subject to the

¶57

¶58

obligation, if any attaching to the property. In the instant case, the plaintiffs are entitled to succeed the estate of their original father and the order passed by the Trial Court is contrary to the law laid down by Andhra Pradesh High Court reported in AIR 1981 ANDHRA PRADESH 19 (YARLAGADDA NAYUDAMMA ETC. v/s THE GOVERNMENT OF ANDHRA PRADESH AND OTHERS) wherein the Andhra Pradesh High Court held that when a member of a co-parcenary governed by Mitakshara school is given in adoption, his undivided interest in the co-parcenary property would continue to vest in him even after adoption by a reason of proviso (b) to Section 12 of the Act. He further contended that the judgment and decree passed by the Trial Court is contrary to law and the same is liable to be set aside.

¶59

On the other hand, learned counsel appearing for the respondents argued in support of the judgment and decree passed by the Trial Court and contended that in view of the adoption of Thimmaraya by Muniga as per the registered adoption deed of the year 1933, Thimmaraya ceased to be the member of joint family and he cannot claim a share in the estate of the original father. He also relied upon the judgment reported in AIR 1992 BOMBAY 189

¶60

¶61

(DEVGONDA RAYGONDA PATIL v/s SHAMGONDA RAYGONDA PATIL AND ANOTHER) and sought for dismissal of the appeal.

¶62

We have carefully considered the arguments addressed by the

¶63

parties and perused the oral and documentary evidence adduced by the parties.

¶64

The only point that arise for consideration in this appeal is –

¶65

Whether the plaintiffs are entitled to a share in the suit schedule property as members of the joint family.?

¶66

The records clearly disclose that the plaintiffs are the children of Thimmaraya who is the brother of the first defendant. Ex.P10 and Ex.P13 clearly disclose that the plaintiffs are the children of Thimmaraya. The plaintiffs themselves have produced Ex.P8 which is the copy of the judgment and decree in O.S.No.79/1983. In the said case, the plaintiffs have claimed that their father was taken on adoption by Muniga as per the registered adoption deed of the year 1933. Thereafter, the said Muniga executed a Will in favour of Thimmaraya on 30-07-1933. On the basis of the said Will, they

¶67

¶68

claimed share in the property in respect of Sy.Nos.5, 29, 58/2 and 62 of Anjanapura village in O.S.No.79/1983. The plaintiffs claim that even after adoption, the property vest in a coparcener by birth and he gets a vested right in that property by virtue of inheritance as per proviso (b) of Section 12 of the Act. He also relied upon the judgment of Andhra Pradesh referred to above. The judgment of Andhra Pradesh was distinguished by the Bombay High Court in a judgment reported in AIR 1992 BOMBAY 189 cited supra. Relying upon two judgments of the Hon’ble Supreme Court reported in AIR 1987 SC 398 (VASANTH AND ANOTHER v/s DATTU AND OTHERS) and AIR 1988 SC 845 (DHARMA SHAMRAO AGALAWE v/s PANDURANG MIRAGU AGALAWE AND OTHERS), wherein the Bombay High Court interpreting proviso (b) to Section 12 of the Act held that the effect of adoption is that the adoptee cannot have a vested right in the undivided joint family property of his natural birth, we respectfully agree with the view taken by the Bombay High Court. Paragraphs 12 and 16 of the judgment reported in AIR 1992 BOMBAY 189 reads as under:

¶69

“12. A coparcener gets a right by birth in coparcenary property. However, the said right or interest of coparcener is liable to fluctuation, increasing by the death of a coparcener and decreasing by

¶70

¶71

birth of a new coparcener. Then such a coparcener has right to partition of the coparcenary property. He can bring about his separation in status by some definite and unequivocal unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. On such partition, the shares of coparceners are defined and then specific property is vested in him. Till partition takes place, he is having right of joint possession and enjoyment. There is community of interest between all members of the joint family and every coparcener is entitled to joint possession and enjoyment of coparcenary property and to be maintained. It is well established that the essence of coparcenary under Mitakshara Law is unity of ownership. The ownership of the coparcenary property vests in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided can predicate that he was a definite share e.g. one third or one fourth in the joint and undivided property. His interest is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. Considering this, according to me, there is no vested property in a coparcener and therefore proviso (b) to S.12 cannot be attached. It is only those properties which are already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving

¶72

¶73

coparcener can only be said to be vested in him and can pass on to him after the adoption. Therefore the properties which had already become vested in him before adoption as absolute owner are not forfeited by the adoption and the adoptee continues to hold them in the new family. But in the case of coparcenary property it cannot be said that a coparcener was having right to a particular part of it so as to get it vested.

¶74

16. If there is coparcenary or joint family in existence in the family of birth on date of adoption, then the adoptee cannot be said to have any vested property. The property does not vest and therefore provision of S.12, Proviso (b) is not attracted. In the context of S.12, Proviso (b) ‘vested property’ means where indefeasible right is created i.e. on no contingency it can be defeated in respect of particular property. In other words where full ownership is conferred in respect of a particular property. But this is not the position in case of coparcenary property. The coparcenary property is no owned by a coparcener and never any particular property. All the properties vest in the joint family and are held by it.”

¶75

Since Thimmaraya was the adopted son of Muniga, the children of Thimmaraya cannot maintain a suit for partition claiming half share in the properties belonging to A.K.Thimma. Hence, they cannot claim as the members of joint family of defendant No.1 and they are not entitled to any share in the properties left by A.K.Thimma.

¶76

¶77

We find that there is no infirmity or irregularity in the order passed by the Trial Court. In view of the law laid down by the Bombay High Court based on the Hon’ble Supreme Court judgment referred to above, the appellants are not entitled to any relief in the appeal, the point formulated in the appeal is held against the appellants and the appellants are not entitled for any relief. Accordingly, we pass the following:

¶78

ORDER

¶79

The appeal is dismissed.

¶80

Sd/JUDGE Sd/JUDGE

¶81

mpk/-*

Sri.T.Rathan Since Dead by His Lrs v. Chikkamutha Since Dead by His Lrs

Case brief

What is this about?

What did the court decide?

Sri.T.Rathan Since Dead by His Lrs v. Chikkamutha Since Dead by His Lrs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri D M Nagaraj Vs Sri Shiva Kumar

Sri Prakesh Vs Sri S Siddaiah

Kumara Vs Smt.B.R.Poornima

Sri Thimmaiah Narayanaswamy Vs Sri M K Kempasiddaiah

Viswanatha Dixit Vs Sri Prasad

G P Anjaneya Vs B G Gurupada Swamy