Dismissed

Basavaprabhu Shivabasappa Pattan v. S. Shankarappa @ Shivashankarappa

Karnataka HC18 Dec 2024RSA/2092/2006

Case brief

AI extract

What is this about?

This court dismissed the regular second appeal in a succession dispute. It held that defendant No.1 was validly adopted and the suit was barred by limitation. Regarding inheritance rights for a daughter when the father died prior to 1956, the court held the plaintiff is not entitled to a share based on the Hindu Women's Right to Property Act, 1937 and pre-2005 Succession Act.

What did the court decide?

The regular second appeal is dismissed; the judgment and decree of the First Appellate Court stand confirmed.

Basavaprabhu Shivabasappa Pattan Vs S… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18417 RSA No. 2092 of 2006

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA REGULAR SECOND APPEAL NO. 2092 OF 2006 (PAR)

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BETWEEN:

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BASAVAPRABHU SHIVABASAPPA PATTAN

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AGE: 84 YEARS, OCC: BUSINESS, R/O. JUNIPETH RAMDURG, TQ. RAMDURG.

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S. ISHWAR S/O. BASAPPA PATTAN, AGE: 54 YEARS, OCC: BUSINESS, R/O. JUNIPETH, RAMDURG, TQ. RAMDURG.

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… APPELLANTS

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(BY SRI. SHRIKANT T. PATIL & SRI. ROHIT S. PATIL, ADVOCATES)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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S. SHANKARAPPA @ SHIVASHANKARAPPA, A/F GANGAPPA HATTI, AGE: 65 YEARS, OCC. AGRICULTURE, R/O. SHIRASANGI, TQ. SAUNDATTI.

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SRI. MAHANTAPPA S/O. SHANKAREPPA HATTI, AGE: 45 YEARS, OCC. AGRICULTURE, R/O. SHIRASANGI(KALLAPUR), TQ. SAUNDATTI.

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SRI. BASAVARAJ S/O. SHANKARAPPA HATTI, AGE: 29 YEARS, OCC. AGRICULTURE, R/O. SHIRASANGI (KALLAPUR), TQ. SAUNDATTI.

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SMT. VEERAWWA W/O. DUNDAPPA HATTI AGE: 31 YEARS, OCC. HOUSEHOLD WORK, R/O. CTS NO.1025 A, HAVERI, TQ. HAVERI.

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SRI. GANGAPPA S/O. DNDAPPA HATTI, AGE: 33 YEARS, OCC. AGRICULTURE, R/O. CTS NO.1025 A, HAVERI, TQ. HAVERI.

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SRI. SHEKHARAPPA S/O. DNDAPPA HATTI, AGE: MAJOR, OCC. AGRICULTURE, R/O. CTS NO.1025 A, HAVERI, TQ. HAVERI.

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SMT. RAMAWWA D/O. DNDAPPA HATTI, AGE: 36 YEARS, OCC. HOUSEHOLD WORK, R/O. CTS NO.1025 A, HAVERI, TQ. HAVERI.

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SRI. SHIVABASAPPA S/O. DNDAPPA HATTI, AGE: 45 YEARS, OCC. AGRICULTURE, R/O. CTS NO.1025 A, HAVERI, TQ. HAVERI.

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SRI. SHANTAPPA S/O. DNDAPPA HATTI, AGE: 40 YEARS, OCC. AGRICULTURE, R/O. CTS NO.1025 A, HAVERI, TQ. HAVERI.

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SMT. SHANTAWWA W/O. KALLAPPA HATTI, SINCE DECEASED BY HIS LRS., RESPONDENTS NO.11 AND 13 HEREIN ARE TREATED AS ONLY LRS OF DECEASED RESPONDENT NO.10.

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SHIDDAPPA S/O. KALLAPPA HATTI, AGE: 30 YEARS, OCC. AGRICULTURE, R/O. SHIRASANGI (KALLAPUR), TQ. PARASAGOD, DIST. BELAGAVI.

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IRAPPA S/O. KALLAPPA HATTI, AGE: 28 YEARS, OCC. AGRICULTURE, R/O. SHIRASANGI (KALLAPUR), TQ. PARASAGOD, DIST. BELAGAVI.

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GANGAPPA S/O. KALLAPPA HATTI, AGE: 26 YEARS, OCC. AGRICULTURE, R/O. SHIRASANGI (KALLAPUR), TQ. PARASAGOD, DIST. BELAGAVI.

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… RESPONDENTS

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(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R1; NOTICE TO R2, R3, R5, R6, R7, R8, R9 - HELD SUFFICIENT; R4, R10(A), R10(B), R11, R13-NOTICE SERVED;

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R10, R12 ARE DECEASED; R11 AND R13 ARE TREATED AS LRS OF DECEASED R12; R11 AND R13 ARE TREATED AS LRS OF DECEASED R10)

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3 - NC: 2024:KHC-D:18417 RSA No. 2092 of 2006

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THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.04.2006 PASSED IN R.A.NO.28/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), SAUNDATTI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.09.2002 PASSED IN O.S.NO.61/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN), SAUNDATTI.

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THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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ORAL JUDGMENT

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The plaintiff is before this Court in this regular second appeal assailing the judgment and decree, dated 12.04.2006 in R.A. No.28/2002 on the file of the Civil Judge (Sr.Dn.), Saundatti (for short "the First Appellate Court) reversing the judgment and decree dated 30.09.2002 in O.S. No.61/1992 on the file of the Civil Judge (Jr.Dn.), Saundatti (for short "the trial Court") wherein, the suit seeking for partition and separate possession, came to be dismissed.

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The parties herein are referred to as per their rank before the trial Court for the sake of convenience.

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NC: 2024:KHC-D:18417 RSA No. 2092 of 2006

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3. Suit for partition and separate possession

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seeking half share in the joint family properties as shown in schedule "A" property and for mesne profit and other reliefs.

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4. The family genealogical tree of the plaintiff and

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defendants is culled out as under:

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5. PLAINT AVERMENTS:

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(i) The original propositus-Shri Sharanappa Hatti died long before 1950 survived by his two sons, namely,

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Gangappa and Kotreppa. The original propositusSharanappa possessed the suit properties and after his death, his two sons Gangappa and Kotreppa had settled at Saundatti and they brought the joint family funds with them and started the Kirana Business at Saundatti;

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(ii) From the huge profits earned in the said business, they have purchased the suit properties;

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(iii) That Gangappa was the head of the family, he had no male issues, he died on 07.03.1950 while the family was joint with his brother Kotreppa, survived by his widow-Rudrawwa and his daughter-Rayavawwa (plaintiff herein);

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(iv) On death of Gangappa, Kotreppa managed the Kirana Business and the joint family properties acquired in the name of Gangappa and himself;

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(v) Rudrawwa-the mother of the plaintiff was the full sister of Danawwa i.e, W/o Kotreppa and the

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relationship between branches of Gangappa and Kotreppa, even after the death of Gangappa were cordial and they continued to stay together under the same roof;

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(vi) Plaintiff married during the lifetime of Gangappa in the year 1942 and after the death of Gangappa, Rudrawwa continued to stay in the family of Kotreppa, Rudrawwa died on 08.08.1964 survived by her only daughter i.e., the plaintiff;

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(vii) That after the death of Danawwa on 22.07.1984, defendant No.1 described himself as the adopted son of her father though he was never adopted by Gangappa;

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(viii) On enquiry, it was revealed that Kotreppa and defendant No.1 have fraudulently brought about a partition deed, dated 27.03.1962 showing division of the lands of Kotreppa and defendant No.1;

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(ix) That defendant No.1 was never adopted by her father nor any such adoption has taken place at any point of time;

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(x) That the plaintiff nor her mother was ever made aware about the alleged partition of the year 1962 and the entries made in the concerned records on the strength of the alleged partition;

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(xi) After the death of her father on 07.03.1950, his widow Rudrawwa is entitled for half share as per the Hindu Women's Right to Property Act, 1937 (for short "the Act, 1937") and this right of Rudrawwa to claim half share in the family properties enlarged into an absolute estate under Section 14(1) of the Hindu Succession Act, 1956 (for short "the Act, 1956") and the plaintiff is the only Class-I heir of the deceased Rudrawwa and is entitled to claim half share in the suit properties.

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6. WRITTEN STATEMENT AVERMENTS:

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Defendant No.1 filed written statement denying the plaint averments and contended that:

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(i) Gangappa and Kotreppa lived jointly till the death of Gangappa on 07.03.1950;

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(ii) Gangappa had no male issues, whereas Kotreppa had three sons and a daughter. Gangappa with an intention to continue his line, adopted Shankareppa @ Shivashankareppa S/o. Kotreppa Hatti i.e., defendant No.1;

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(iii) When Shankareppa @ Shivashankareppa was too young, the adoption ceremony was held in the family and Rudrawwa-wife of Gangappa was present at the time of adoption;

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(iv) The plaintiff was married in and around 1942 and was staying with her husband at Ramdurg and was not present at the time of adoption;

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(v) Defendant No.1 was admitted to school by Gangappa himself and described defendant No.1 as Shankareppa

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@ Shivashankareppa adopted son of Gangappa Hatti;

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(vi) All along defendant No.1 was recognized as adopted son of Gangappa Hatti and after the death of Gangappa, his wife Rudrawwa wanted some property for her maintenance and therefore, partition was affected in the family in the year 1952 and a registered partition deed was executed by Kotreppa for himself and as minor guardian of this defendant and Rudrawwa Gangappa Hatti described the defendant as the adopted son of late husband Gangappa in the said deed and received land bearing Sy. No.99 of Govankoppa Village;

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(vii) The plaintiff who is claiming right through the deceased Rudrawwa is not entitled to dispute defendant No.1's adoption after a lapse of more than four decades and the plaintiff is estopped by her own

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conduct from disputing the adoption of defendant No.1;

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(viii) The father i.e., Gangappa died on 07.03.1950 as on the said date, Shankarappa was adopted and the Hindu Succession Act, 1956 came into force in the year 1956, prior to coming into force of this Act, the daughter could not be treated as a coparcener to be entitled for share in the property of the father.

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The trial Court based on the pleadings, framed

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the following issues:

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"1. Whether the plaintiff proves that the original propositus Sharnappa's family was Hindu joint family?

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2. Whether the plaintiff proves that after the death of original propositus Sharanappa, his sons Gangappa and Kotreppa left Haveri and came and settled at Saundatti and were living jointly?

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3. Whether the plaintiff proves that Gangappa and Kotreppa started Kirana business on the hills of Yallamma temple and at Shirasangi with the help of

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joint family funds which they had brought from Haveri?

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4. Whether the plaintiff proves that Gangappa was manager of the joint family of himself and Kotreppa and most of the purchases made during his life time were in his name?

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5. Whether the plaintiff proves that her father Gangapppa died on 7.3.1950 in jointness leaving behind him his daughter plaintiff and widow Rudrawwa?

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6. Whether the plaintiff proves that after the death of Gangappa, Kotreppa was managing the joint family affairs?

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7. Whether the plaintiff proves that her mother Rudrawwa died on 8.8.1964 when she was living jointly with Kotreppa ?

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8. Whether Deft. No.1 proves that he is the adopted son of Gangappa?"

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8. In order to substantiate their claim, the plaintiff

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examined the power of attorney holder l.e., her husband as PW1, examined one witness as PW2 and marked documents at Exs.P1 to P34. On the other hand, defendant No.1

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examined himself as DW1, also examined two witnesses as DW2 and DW3 and marked documents at Exs.D1 to D78.

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The trial Court arrived at a conclusion that:

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(i) The plaintiff proved that the original propositus Sharanappa's family was the Hindu joint undivided family;

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(ii) The plaintiff proved that Gangappa was the Manager of the joint family for himself and Kotreppa and the properties were purchased out of the joint family funds during the lifetime of Gangappa;

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(iii) Gangappa died on 07.03.1950 in jointness, leaving behind him his daughter - plaintiff and widowRudrawwa;

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(iv) Defendant No.1 failed to prove that he is the adopted son of Gangappa;

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The trial Court by the judgment and decree, decreed the suit and declared that, the plaintiff is entitled half share

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in suit "A" schedule property and 1/4^th share in suit "C" schedule property.

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Aggrieved, the defendants preferred appeal before the First Appellate Court.

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The First Appellate Court, while appreciating the entire oral and documentary evidence, reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiff seeking partition and separate possession.

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Aggrieved, the plaintiff is before this Court in this Regular Second Appeal.

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This Court, while admitting the appeal on 27.06.2024, framed the following substantial questions of law:

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"1) Whether the first appellate Court erred in recording the finding that the adoption of the defendant No.1 is proved although there was no

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NC: 2024:KHC-D:18417 RSA No. 2092 of 2006

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pleading or evidence with regard to the manner of the said adoption?

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2) Whether the finding of the First Appellate Court holding that since the father of the plaintiffs/ appellants having died in the year 1950, prior to coming into force of the Hindu Succession Act, the plaintiff is not entitle for a share in the suit property is just and proper?

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3) Whether the finding of the First Appellate Court, that the suit is barred by limitation is erroneous and liable to be interfered with?

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4) Whether the First Appellate Court was Justified in interfering with the judgment and decree passed by the Trial Court and dismissing the suit for partition?"

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Learned counsel appearing for the appellants and

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learned counsel appearing for the respondents have been heard on the substantial questions of law framed by this Court.

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Learned counsel for the appellants would urge the following grounds:

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(i) That the defendants have not specifically averred in their written statement about the giving and taking ceremony that has been taken place at the time of adoption and in the absence of any specific pleadings any amount of evidence cannot be looked into and the First Appellate Court was not justified in accepting the evidence of the defendants, in support reliance is placed on the decisions of the Apex Court in the case of BACHHAJ NAHAR VS. NILIMA MANDAL AND ANOTHER¹ (BACHHAJ NAHAR) and in the case of BIRAJI ALIAS BRIJRAJI AND ANOTHER VS. SURYA PRATAP AND OTHERS² (BIRAJI ALIAS BRIJRAJI).

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(ii) The First Appellate Court erred in holding that since the father of the plaintiff died in the year 1950 prior to coming into force of Hindu Succession Act, 1956, the plaintiff is entitled for share in the suit properties.

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1 (2008) 17 SCC 491

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2 AIR Online 2020 SC 806

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Reliance is placed in the decision of the Apex Court in the case of ARUNACHALA GOUNDER (DEAD) BY

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LEGAL REPRESENTATIVES VS. PONNUSAMY AND

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OTHERS³ (ARUNACHALA GOUNDER).

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(iii) That the First Appellate Court has erroneously held that the suit of the plaintiff is barred by limitation;

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(iv) Stating these grounds, learned counsel for the appellants submits that the substantial questions of law framed by this Court need to be answered in favour of the appellants.

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Per contra, learned counsel appearing for the respondents justifying the judgment and decree of the First Appellate Court would urge the following grounds:

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(i) To prove the adoption, the defendants have specifically pleaded in their written statement regarding the adoption ceremony taking place, which is supported by evidence of DW1 and DW2.

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3 (2022) 11 SCC 520

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(ii) That the plaintiff was aware about the adoption and pursuant to the adoption, the revenue entries have been mutated in the name of defendant No.1 and it was projected that defendant No.1 is the adopted son of the deceased Gangappa and Rudrawwa, the defendants have specifically pleaded and proved by leading oral and documentary evidence, more particularly the evidence of DW2, who categorically deposed about giving and taking ceremony that have taken place at the time of adoption and the First Appellate Court was justified in holding that, there is a valid adoption and defendant No.1 was adopted by Gangappa and Rudrawwa. In support of his contention reliance is placed on the decisions of the Apex Court in the case of LAXMΙΒΑΙ (DEAD) THROUGH L.RS.

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AND ANOTHER VS. BHAGWANTBUVA (DEAD) THROUGH L.RS.⁴ (LAXMIBAI).

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4 (2013) 4 SCC 97

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(iii) The adoption is pleaded and the requirements of adoption as envisaged under the Act is proved in

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evidence. Reliance is placed on the following decisions:

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a. DEOKI NANDAN AJUDHIA PARSHAD AND

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ORS. VS. RIKHI RAM AND ORS.⁵ (DEOKI NANDAN AJUDHIA PARSHAD);

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b. GHISALAL VS. DHAPUBAI (DEAD) BY L.RS.

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AND OTHERS⁶ ; (GHISALAL) and

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c. BHOLOORAM AND ORS. VS. RAMLAL AND

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ORS.⁷ (BHOLOORAM).

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(iv) Plaintiff's father died prior to 1956 and the plaintiff does not have a right of inheritance in the property of her father as he survived by adopted son (defendant)

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and widow and the First Appellate Court has rightly held that the plaintiff is not entitled for share in the

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5 AIR 1960 P&H 542

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6 Civil Appeal Nos.6373-6374/2002, DD 12.01.2011

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7 AIR 1989 MP 198

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suit schedule properties. Reliance is placed on the

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following decisions:

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a. ERAMMA VS. VEERUPANA AND OTHERS⁸

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(ERAMMA);

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b. PUSHPALATHA N.V. VS. V.PADMA AND

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OTHERS⁹ (PUSHPALATHA);

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c. Decision of the High Court of Bombay in the case of Radhabai Balasaheb Shirke vs. Keshav Ramchandra Jadhav and others¹⁰ (Radhabai Balasaheb Shirke); d. Decision of this Court in the case of

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Balasaheb Shirke);

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KRISHNAMΜΑ VS. MUNIYAMMΜΑ AND OTHERS¹¹ (Krishnamma)

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This Court has carefully considered the

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submissions made by both the learned counsels and perused the materials available on record.

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8 (1966) 2 SCR 626

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9 ILR 2010 KAR 1484

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10 RSA No.593/1987 DD 12.11.2024

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11 RSA No.944/2011 DD 29.07.2024

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Substantial question of law Nos.1, 3 and 4 are taken up together which read as under:

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“1) Whether the first appellate Court erred in recording the finding that the adoption of the defendant No.1 is proved although there was no pleading or evidence with regard to the manner of the said adoption?

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3) Whether the finding of the First Appellate Court, that the suit is barred by limitation is erroneous and liable to be interfered with?

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4) Whether the First Appellate Court was justified in interfering with the judgment and decree passed by the Trial Court and dismissing the suit for partition?”

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Defendant No.1 in his written statement

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categorically stated at para No.4, which reads as under:

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“4) The contents of para 3 of the plaint are not admitted to be correct. It is not correct to say that Gangappa and Kotreppa sons of Sharanappa came to Saundatti, brought joint family funds with them and started kirana business on the hills of

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Shree Yallamma Temple at Saundatti It is however true that they started Kirana business at Saundatti with the help of the funds provided by their maternal grand mother and later on started another shop at Sirasangi. In course of time they acquired properties and treated them as their joint family properties. During the life time of Gangappa he was the manager of the family and after his death Kotreppa became the Manager of the family. Gangappa and Kotreppa lived jointly till the death of Gangappa on 7.3.1950. Gangappa had no male issues, whereas Kotreppa had 3 sons and a daughter. Gangappa with an intention to continue his line adopted Shivashankreppa@ Shankreppa son of kotreppa When Shankreppa was to young the adoption ceremony was held in the family house and deceased Rudrawwa workmano Gangappa was present during the ceremonies. The plaintiff was married in or about 1942 and has been staying with her husband at Ramdurg. She was therefore not present at the time of adoption. After the adoption, the Ist defendant was admitted to School by Gangappa himself and described the Ist defendantas Shivashankreppa @ Shankreppa Workmans of Gangappa Hatti. All along the Defendant is recognised as as the adopted son of Gangappa Hatti. After the death of Gangappa his widow Rudrawwa wanted some properties for her maintenance and therefore a partition was effected in

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the family in the year 1952 and a registered partition deed was executed by kotreppa Sharanappa Hatti for himself and as minor guardian of this defendant and Smt. Rudrawwa Gangappa Hatti. Rudrawwa described this defendant as the adopted son of her late husband Gangappa in the said deed and received the land Sy. No.99 of Govankoppa village in Taluka: Parasgad as a life estate. She has affixed her thumb impression to this deed after admitting the contents of the same. Thus deceased Rudrawwa workmano Gangappa Hatti confirmed that this defendant is the adopted son of deceased Gangappa. The plaintiff who is claiming a right through deceased Rudrawwa is not entitled to dispute the Ist defendant’s adoption after a lapse of more than 4 decades. The plaintiff is estopped by her own conduct from disputing the adoption of Defendant No.1.”

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( Emphasis Supplied)

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In order to prove the adoption, defendant No.1 examined himself as DW1 and two witnesses as DW2 and DW3. DW2-Basavanthappa Ramchandrappa Murtennavar deposed about the ceremony of adoption in the year 1945. DW2 was cross examined by the plaintiff, nothing worthwhile was elicited to disbelieve the version of DW2.

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The relevant portion of the examination-in-chief of DW1 and

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cross examination to that effect is culled out as under:

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“I know the parties to the suit. Defdt. No.1’s adoptive father name is Gangappa. The said Gangappa had brother by name Kotrappa. Gangappa's wife name is Rudrawwa. Danawwa is wife of Kotrappa. The said Danawwa and Rudrawwa are sisters. The genetive father of defdt.no.l is Kotrappa and mother is Danawwa. Gangappa and his wife Rudrawwa had taken defdt.no.1 in adoption in the year 1945 on yugadi padya. The adoption ceremony took place at the residential house of Gangappa. The adoption ceremony commenced from 9 am to 11 am on the said day. At the time of the adoption myself, the father of late Advocate M.C.Yettinmath's father Chanabasayya Yettinmath, Parappa Gurlkatti, Siddayya Shivayya Mathapathi, Maharudrappa Morabad, Gurusiddayya Sattigerimath appreciating swamiji of the adoptive ceremony. The said Swamiji performed the ceremonies of the adoption. Towards eastern side of the entrance of the hall, black blanket was put-up and two sitting stools (Mani's placed opposite site). In one of the Mani, Gangappa and his wife Rudrawwa sat and on another Defdt.no.1 was sitting. He was 6 years old at the time of ceremony. Defdt.no.1 worn new dress and adoptive father Gangappa had put-on white turbon. Thereafter he

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removed the turbon and placed on the head of Defdt.no.1. The genative parents of Defdt.no.1 in the name of God, present, elders and people present there gave their son defdt.no.1 in adoption to Gangappa and his wife Rudrawwa. Then Gangappa took Defdt.no.1 on his lap and poured sugar on his mouth. I distributed the sweet to the people present. Gangappa and his wife accepted the adoption of Defdt.no.1 in the presence of elders and the geneative father & mother of Defdt.no.1. The people attended the ceremony were served with food. At the time of adoption ceremony about 50 members were present. I remember some people attended the ceremony, Gulla family, Moraba family, Patted family and relatives of Gangappa and Kotrappa, Bali family and Gopshetti family, Pattan family of Ramdurg. The present plff. is given in marriage to Pattana family to one Basavaprabhu Pattan. The elder brother of said Basavaprabhu i.e. brother-in-law of plff., Mahadevappa Pattan was M.L.A. for 2 periods, and wife Sharadamma Mahadevappa Pattan was also M.L.A. of Ramdurg constituency. Plff. was given to a richest family.

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After the adoption, Deft.no.1 remained with adoptive father Gangappa and mother Rudrawwa. The adoptive father Gangappa got defdt.no.1 admitted to school. Defdt.no.1 studied upto 7th standard at Shirasangi. The present defdt.no.1

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studied in my class from 5th standard to 7th std. Thereafter defdt.no.1 studied at Saundatti upto matriculation. Thereafter he joined service. The defdt.no.1 retired as a conductor”

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Cross-examn. by Sri.Patil, Adv.

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My house is situated at Hosur oni, and the house of the Hatti family is situated at Bazar Road. Gangappa and Kotrappa were originally belong to Haveri. The father of Gangappa and Kotrappa came from Haveri to our village. I have not seen said Shararappa. The Hatti family came from Haveri more than 100 years. I knew deceased Gangappa and Kotrappa. Till their death, they live together. The Hatti family had no property in our village. At present Hatti family is owning about 15/acres of land and 2 houses and no open space to the family. The Hatti family is having property at Haveri. There might be a house at Haveri and I do not know whether they have agril. land at Haveri. It is not true to say that Gangappa and Kotrappa had joint business at yallamma hills and at village. The witness volunteers Gangappa ha business only at yallamma hills. At present Hatti family is owning 15/acres of land and 12 acres. I do not know whether the family is owning about 35 acres of land.”

¶196

“I do not remember the date and month of the adoption ceremony of defdt.no.1. The witness

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says; it was on the yugadi padya day in 1945. It is true to say that there is no document to that effect about the adoption. I have not made a note of the adoption ceremonies took place at yugadi day. I do not remember any of the functions attended in the year 1945. I do not remember the ceremonies or the functions attended by me in the last 4 years. I have got 17 grand-children from 4 daughters. I do not remember how many of my grand-children married. I can able to say about marriage of my children. My elder daughter was married in the year 1948-49 and last daughter was married in the year 1975. I am not able to say the dates of marriages of my daughter.

¶199

Apart from myself, nobody is alive who have attended the adoption ceremony. I didn’t make note of the people attended the adoption ceremony. Generally the adoption deeds are registered. It is false to say that there was procedure to take photos of the adoption ceremony. The Swamiji attended the ceremony was Gurusiddayya Sattigerimath who was the priest for adoption ceremony. The swamy chanted the mantras at the ceremony. I do not know which mantra he chanted at the ceremony. The ceremony took place between 9 am to 11 am. Apart from the taking the boy to the lap and putting turban and pouring sugar on his mouth there was no other ceremony. Nobody made gifts at the

¶200

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ceremony. In the year 1945 I was serving as Teacher at Halakatti. Myself and other elders didn’t suggest for recording a document of the ceremony. It is not true to suggest that the defdt.no.1 was not given in adoption in the year 1945 yugadi day. It is true to say that defdt.no.1 was given by his natural father Kotrappa to Gangappa on his lap and turban was put on and sugar was poured. It is not true to say that I am deposing falsely at the instance of defdt.no.1, and no ceremonies were taken place as stated by me.”

¶202

(Emphasis Supplied)

¶203

The adoption was pleaded by defendant and the requirements of adoption was stated categorically by DW2; in support of the oral evidence let in by the defendant, the documents produced at Exs.D1, D2 and D3 and the mutation entry effected showing that, defendant No.1 as the adopted son of Gangappa.

¶204

The Apex Court in the case of LAKSHMIBAI

¶205

stated supra has held at para Nos.22 to 35 as under:

¶206

“ 22 . Section 10 of the 1956 Act provides that a child up to the age of 15 years can be taken in

¶207

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adoption. Section 11 thereof prescribes that in the event that a female adopts a male child, there must be a difference of 21 years between the age of the female and that of the adoptive child. In the event that there is a registered adoption deed, there is a presumption of validity with respect to the said adoption. If these tests are applied, the following situation emerges:

¶209

22.1. The adopted child was 8 years of age at the time of adoption. Laxmibai, the adoptive mother, was 70 years of age at the relevant time and there is in fact, a registered adoption deed. Therefore, there is a presumption under Section 16 of the 1956 Act, to the effect that the aforementioned adoption has been made in compliance with the provisions of the 1956 Act, until and unless such presumption is disproved. In the event that a person chooses to challenge such adoption, the burden of proof with respect to rebutting the same, by way of procedures accepted by law, is upon him.

¶210

22.2. In the instant case, the respondentdefendants never made any attempt whatsoever to rebut the presumption under Section 16 of the 1956 Act. The defendants have examined two witnesses, namely,

¶211

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Narharibuva (DW 1) and Somnath (DW 2). We have been taken through their depositions, in which there has been no reference whatsoever to the registered adoption deed, let alone any attempt of rebuttal. Therefore, the respondentdefendants have failed to discharge the burden of rebuttal placed upon them, with respect to the presumption of validity of adoption under Section 16 of the 1956 Act.

¶213

23 . Undoubtedly, the court while construing a document, is under an obligation to examine the true purport of the document and draw an inference with respect to the actual intention of the parties. The adoption deed was registered on 11-5-1971, and the same provided complete details stating that the adopted child was 8 years of age, and that the adoptive mother was an old lady of 70 years of age. The adoptive child was related to Smt Laxmibai. Her husband had expired in 1951 and it had been his desire to adopt a son in order to perpetuate the family line and his name. The natural parents of the adoptive child had agreed to give their child in adoption, and for the purpose of the same, the requisite ceremony for a valid adoption was conducted, wherein the natural parents, Vasant Bhagwant Pandav and Smt Sushilabai Vasantrao Pandav, placed the adoptive child in the lap of the adoptive mother, in the presence of a large number

¶214

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¶215

of persons, including several relatives. A religious ceremony called “Dutta Homam”, involving Vedic rites was performed by a pundit, and photographs of the said occasion were also taken. Registration of the adoption deed was done on the same day, immediately after its execution before the Registrar concerned. The adoptive mother put her thumb impression on the deed, and it was also signed by the natural parents of the child. Additionally, the deed was signed by 7 witnesses, and all the parties have been identified. The registered document when read as a whole, makes it evident that Vasant Bhagwant Pandav and Smt Sushilabai, the natural parents of the adoptive child, have signed the same as attesting witnesses, and not as executing parties.

¶216

24 . It has been laid down that it would defy common sense, if a party to a deed could also attest the same. Thus, a party to an instrument cannot be a valid attesting witness to the said instrument for the reason that such party cannot attest its own signature. (Vide Harish Chandra Singh Deo v. Bansidhar Mohanty [AIR 1965 SC 1738] .)

¶217

25 . A document must be construed taking into consideration the real intention of the parties. The substance, and not the form of a document, must be seen in order to determine its real purport.

¶218

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26 . In Delta International Ltd. v. Shyam Sundar Ganeriwalla [(1999) 4 SCC 545 : AIR 1999 SC 2607] this Court held that the intention of the parties is to be gathered from the document itself. Intention must primarily be gathered from the meaning of the words used in the document, except where it is alleged and proved that the document itself is a camouflage. If the terms of the document are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for the purpose of ascertaining the real relationship between the parties. If a dispute arises between the very parties to the written instrument, then intention of the parties must be gathered from the document by reading the same as a whole.

¶220

27 . In Vodafone International Holdings BV v. Union of India [(2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867] , while dealing with a similar situation, this Court held : (SCC pp. 670 & 720, paras 80 & 286)

¶221

“80. … the Court must look at a document or a transaction in a context to which it properly belongs to.

¶222

***

¶223

286. … ‘4. … While obliging the court to accept documents [Ed. : Emphasis supplied.] or transactions, found to be genuine, as such,

¶224

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it does not compel the court to look at a document [Ed. : Emphasis supplied.] or a transaction in blinkers, isolated from any context to which it properly belongs. If it can be seen that a document [Ed. : Emphasis supplied.] or transaction was intended to have effect as part of a nexus or series of transactions, or as an ingredient of a wider transaction intended as a whole, there is nothing in the doctrine to prevent it being so regarded : to do so in not to prefer form to substance, or substance to form. It is the task of the court to ascertain the legal nature of any transaction to which it is sought to attach a tax or a tax consequence and if that emerges from a series or combination of transactions, intended to operate as such, it is that series or combination which may be regarded.’ [Ed. : As observed in Ramsay (W.T.) Ltd. v. IRC, 1982 AC 300 at pp. 323 G-324 A : (1981) 2 WLR 449 : (1981) 1 All ER 865 (HL).] ”

¶226

(emphasis in original)

¶227

28 . In S.T. Krishnappa v. Shivakumar [(2007) 10 SCC 761] this Court observed that the “adoption deed” must be read as a whole and that on reading the same in such a way, the intention of the parties with respect to whether the adoptive father/mother

¶228

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wanted to make an adoption according to law and not merely to appoint an heir, must be clearly established.

¶230

29 . In L. Debi Prasad v. Tribeni Devi [(1970) 1 SCC 677] (SCC p. 681, para 8) this Court held that the giving and receiving are absolutely necessary to the validity of an adoption. All that is required is that the natural father be asked by the adoptive parent to give his son in adoption, and that the boy be handed over and taken for this purpose.

¶231

30 . Furthermore, in Deu v. Laxmi Narayan [(1998) 8 SCC 701], the presumption of registered documents under Section 16 of the Act was discussed. It was held that in view of Section 16, wherever any document registered under any law is produced before any court purporting to record an adoption made, and the same is signed by the persons mentioned therein, the court shall presume that the said adoption has been made in compliance with the provisions of the Act, until and unless such presumption is disproved. It was further held, that in view of Section 16 it is open for a party to attempt to disprove the deed of adoption by initiating independent proceedings.

¶232

31 . Mere technicalities therefore, cannot defeat the purpose of adoption, particularly when the

¶233

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respondent-defendants have not made any attempt to disprove the said document. No reference was ever made either by them, or by their witnesses, to this document i.e. registered adoption deed. Undoubtedly, the natural parents had signed along with 7 witnesses and not at the place where the executants could sign. But it is not a case where there were no witnesses except the executants. Instead of two witnesses, seven attesting witnesses put their signatures.

¶236

32 . In Atluri Brahmanandam v. Anne Sai Bapuji [(2010) 14 SCC 466 : (2012) 1 SCC (Civ) 644 : AIR 2011 SC 545] the Court held : (SCC pp. 46870, paras 10 & 13)

¶237

“10. The aforesaid deed of adoption was produced in evidence and the same was duly proved in the trial by the evidence led by PW 1, the respondent. We have carefully scrutinised the cross-examination of the said witness. In the entire cross-examination, no challenge was made by the appellant herein either to the legality of the said document or to the validity of the same. Therefore, the said registered adoption deed went unrebutted and unchallenged. We have already referred to the recitals in the said document which is a registered document and according to the

¶238

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recitals therein, the respondent was legally and validly adopted by the adoptive father….

¶240

***

¶241

13. … Since the aforesaid custom and aforesaid adoption was also recorded in a registered deed of adoption, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the respondent has utterly failed to challenge the said evidence and also to disprove the aforesaid adoption.”

¶242

(emphasis added)

¶243

33 . The appellate courts could therefore, not have drawn any adverse inference against the appellant-plaintiffs on the basis of a mere technicality, to the effect that the natural parents of the adoptive child had acted as witnesses, and not as executors of the document. Undoubtedly, adoption disturbs the natural line of succession, owing to which, a very heavy burden is placed upon the propounder to prove the adoption. However, this onus shifts to the person who challenges the adoption, once a registered document recording the adoption is brought before the court. This aspect must be considered taking note of various other attending circumstances i.e. evidence regarding the

¶244

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religious ceremony (giving and taking of the child), as the same is a sine qua non for valid adoption.

¶246

34 . The trial court in this regard has held that the fact that the natural parents of the adoptive child had signed along with seven other witnesses as attestants to the deed, and not as its executors, would not create any doubt regarding the validity of the adoption, or render the said registered document invalid, as they possessed sufficient knowledge with regard to the nature of the document that they were executing, and that additionally, no challenge was made to the registration of the document, immediately after its execution. The first appellate court took note of the deposition of Shri Vasant Bhagwantrao Pandav (PW 1), who had deposed that the adoption deed had been scribed, and that the signatures of the parties and witnesses to the deed had been taken on the same, only after the contents of the said document had been read over to Smt Laxmibai, the adoptive mother, and then to all parties present. Smt Laxmibai, appellant-plaintiff was in good health, both physically and mentally, at the time of the adoption. The validity of the adoption deed, however, was being challenged on the basis of the mere technicality, that only interested witnesses had been examined and the court finally rejected the authenticity of the said document, observing that

¶247

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witnesses who wanted to give weight to their own case, could not be relied upon.

¶249

35 . The appellate courts further held that the adoption deed had neither been properly executed, nor satisfactorily proved, and that as the adoption remains a unilateral declaration by the appellantplaintiffs, owing to the fact that the natural parents of the adopted child had not signed the adoption deed as executors but as witnesses, the same could not be held to be a valid deed. Undoubtedly, a mere signature or thumb impression on a document is not adequate with respect to proving the contents of a document, but in a case where the person who has given his son in adoption, appears in the witness box and proves the validity of the said document, the court ought to have accepted the same, taking into consideration the presumption under Section 16 of the 1956 Act, and visualising the true purport of the document, without going into such technicalities. This must be done particularly in view of the fact that the respondent-defendants have not made even a single attempt to challenge the validity of the said document. In fact, they have not made any reference to the same. We have no hesitation in holding that the document was valid, and that the same could not have been discarded by the appellate courts.”

¶250

(Emphasis supplied)

¶251

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¶252

The defendants pleaded specifically that there is an adoption taken place with the consent of the wife of Gangappa and in the evidence, the factum of adoption and validity of adoption, the ceremony taken place have been specifically deposed by DW2. The decisions placed by the counsel for the appellants in the cases of BACHHAJ

¶253

NAHAR and BIRAJI ALIAS BRIJRAJI stated supra, this Court has absolutely no quarrel about the settled proposition of law, however the same is distinguishable to the present facts, as in the instant case, there is a pleading to the effect of adoption and based on the pleadings, the evidence has been let in and the First Appellate Court rightly arrived at a conclusion that the defendant has proved the adoption by Gangappa; accordingly, substantial question of law No.1 is answered.

¶254

Substantial question of Law Nos.3 and 4 are taken up together before answering substantial question of law No.2. The defendant was adopted by the father of the

¶255

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plaintiff deceased Gangappa, the plaintiff in her pleadings averred at para No.5 as under:

¶258

“Some time after the Danawwas’ death Applicant/Plaintiff learnt that Opponent/Defendant No.1 was describing himself as the adopted son of her father though in fact he was never adopted by Gangappa. This made Applicant/Plaintiff suspicious and on enquiry she found that deceased Kotreppa and Opponent Defendant No.1 and his brothers have collusively got the names of Opponent/Defendant No.1 entered to some of the suit properties, by falsely representing that Gangappa died issueless. This naturally shocked Applicant/Plaintiff. Her further enquiries revealed that Kotreppa and Opponent/Defendant No.1 and his other sons have fraudulently brought about a partition deed dated 27/3/1962 showing divisions of lands between Kotreppa and Opponent/Defendant No.1 by falsely describing Opponent/Defendant No.1 as the adopted son of Gangappa. The Applicant/Plaintiff submits that Opponent/Defendant No.1 was never adopted by her father nor has any such adoption taken place at any time. The Applicant/Plaintiff or her mother were never made aware of the alleged partition of 1962 or the entries got made in the concerned records on the strength of the alleged partition. When questioned, Opponent/Defendant No.1 and his brothers started

¶259

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giving evasive answers. The Applicant/Plaintiff further found that the Opponent/Defendant No.1 and his brothers all acting in active collusion have sold several family Properties and with the sale proceeds purchased the properties described in schedule ‘C’ at serial No.7 to 10 in the names of the sons of Opponent/Defendant No.1 i.e. Opponent/Defendant No.2 and 3.”

¶261

Plain reading of the plaint indicates that the plaintiff was fully aware about the defendant's adoption, despite being aware, the plaintiff neither raised any objections nor took any legal action to contest the adoption for a significant period of time. After several years the plaintiff now files suit questioning the validity of adoption, but the prayer does not explicitly seek a declaration to that effect, this inconsistency weakens the case as the relief must align with the pleadings. The Privy council in the case of Siddik Mahomed Shah Vs. Mt Saran¹² has observed that no relief can be granted beyond what is explicitly pleaded and sought. In the instant case, it is not about the absence of explicit prayer but limitation as well. Article 57

¶262

12 AIR (1930) PC 57

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of the Limitation Act, 1963 provides a time limit for filing a suit to obtain a declaration that an adoption is invalid or never took place, the limitation prescribed is 3 years and the starting point of limitation from the date when the challenging party becomes aware. As stated supra, plaintiff pleaded that she learnt that defendant is describing himself as the adopted son of her father after the death of Danawwa in the year 1984, the challenge about the validity of adoption in the pleadings is beyond the limitation period, and the First Appellate Court was justified in holding that the suit is barred by limitation, for the foregoing reasons, substantial question of law Nos.3 and 4 are answered accordingly.

¶265

Regarding substantial question of law No.2, framed by this Court:

¶266

“2) Whether the finding of the First Appellate Court holding that since the father of the plaintiffs/ appellants having died in the year 1950, prior to coming into force of the Hindu Succession

¶267

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Act, the plaintiff is not entitle for a share in the suit property is just and proper?”

¶269

Under the Act, 1956, the daughters are not

¶270

coparceners; to answer the right of the daughter prior to 1956; and to decide whether the plaintiff would be entitled for any share as a member of a family on the death of the propositus, who died prior to 1956, the relevant provisions, which need to be looked into is the Hindu Women's Right to Property Act, 1937 and the Hindu Succession Act, 1956, prior to 2005 Amendment and post 2005 Amendment.

¶271

(i) THE HINDU WOMEN’S RIGHTS TO PROPERTY ACT, 1937 :-

¶272

(1) Devolution of property -

¶273

(2) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in

¶274

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respect of which he dies intestate to the same share as a son:

¶277

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner, as a son’s son if there is surviving a son or sons son of such predeceased son:

¶278

Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

¶279

(3) ……………

¶280

(4) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Women’s estate, provided however that she shall have the same right of claiming partition as a male owner.

¶281

(ii) THE HINDU SUCCESSION ACT, 1956 :-

¶282

Prior to 2005 Amendment

¶283

6. Devolution of interest in coparcenary

¶284

property

¶285

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a

¶286

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Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

¶289

(iii) THE HINDU SUCCESSION ACT, 1956 :- Post 2005 Amendment.

¶290

6. Devolution of interest in coparcenary property .―

¶291

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

¶292

(a) by birth become a coparcener in her own right in the same manner as the son;

¶293

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

¶294

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

¶295

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

¶296

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Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

¶298

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his nterest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,― (a) the daughter is allotted the same

¶299

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share as is allotted to a son;

¶301

(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; and

¶302

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a predeceased daughter, as the case may be.

¶303

The Hindu Women's Right to Property Act, 1937

¶304

under Section 3 specifically provides for devolution of property to a widow, it does not provide for any inheritance right in favour of the daughter. The Apex Court in the case of ERAMMA stated supra has held at para Nos.4 and 5, which reads as under:

¶305

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¶306

“4. There is nothing in the language of this section to suggest that it has retrospective operation. The words “The property of a male Hindu dying intestate” and the words “shall devolve” occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. Reference may be made, in this connection, to Section 6 of the Act which states:

¶307

“6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

¶308

Provided that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship.

¶309

***”

¶310

5. It is clear from the express language of the section that it applies only to coparcenary property

¶311

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of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession opened before the Act, Section 8 of the Act will have no application.”

¶313

The Apex Court held that, the father having died prior to 1956 the entire ancestral properties vest in the surviving male coparcener and the widow. Thus, if the contention of the counsel appearing for the appellants is taken into consideration that, the succession continue to remain open till the year 1956 and further till the partition has been effected in the year 1962, it would be like opening a Pandora's box and would lead to uncertainty, since the succession right cannot be kept in suspension, but has to be frozen on a date when a person dies.

¶314

The Division Bench of the High Court of judicature at Bombay in Second Appeal No.593/1987 in the

¶315

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case of Radhabai Balasaheb Shirke has held at para Nos.21 to 34 as under:

¶318

“21. It is important to observe that provisions of Section 6 of the Act of 1956 which provides for devolution of interest of co-parcenary property begins with the phrase “when a male Hindu dies after the commencement of this Act….”, his interest in the property shall devolve by survivorship upon the surviving members of co-parcenary …… This indicates the intention of the legislature that provisions of the Act of 1956 would not be applicable in case of a person who expired prior to the enactment of the 1956 Act. Section 6(3) post amendment of 2005 also provides that same would apply to a Hindu who dies after the commencement of the Amendment Act of 2005. In the present case, we are concerned with the issue of inheritance qua a coparcener who died before 1956. Therefore, the contention of Mr. Deshmukh on this count is to be rejected that a daughter would have inheritance right in her father’s property who died prior to 1956.

¶319

22. Section 6 post amendment Act of 2005 provides that a daughter shall have a right in the coparcenary property as she would have had if she had been a son. If the intention prior to the enactment of the Hindu Succession Act was to give inheritance

¶320

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right to a daughter then the provisions similar to Section 6(1) of the 2005 Amendment Act would have been incorporated in the Act of 1937. The fact that Section 3 of the 1937 Act expressly provides only for a “widow” to be treated as a “son” for computing her limited interest to share and to seek partition as a male owner clearly shows that at the relevant time prior to 1956, a daughter would not have any inheritance right if her father died prior to 1956.

¶322

23. Our view in this regard is fortified by the Notes on Clauses while introducing Bill No.XIII of 1954 to amend and codify the law relating to intestate succession among Hindus which ultimately got enacted as the Act of 1956. Clauses 8 to 10 of Notes on Clauses shows the intention of the Legislature that for the first time, a daughter would be added in Class I of the preferential heirs in the Schedule to the existing list of simultaneous heirs. The said clause also indicates that under the Act of 1937 only a widow was to have limited right of inheritance. Clauses 8 to 10 of Notes on Clauses read as under:—

¶323

“Clauses 8 to 10 – Before 1937, the “simultaneous heirs” of a male Hindu dying intestate comprised only son, the son of a predeceased son and the son of a pre-deceased son of a pre-deceased son. The Hindu Women’s Rights to Property Act, 1937, added to the list

¶324

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the widows of the first two as well as the intestate’s own widow. Class I of the preferential heirs in the Schedule now adds to the existing list of simultaneous heirs, the daughter, and further seeks, as far as possible, to treat the other grandchildren of an intestate, whose parent has pre-deceased the intestate, on the same footing as the son of a predeceased son, except that in the former case the share to be divided among the children will be less than in the latter case.”

¶326

24. In the case of Gurudayalsing v. Basant Singh MANU/MH/0535/2014 : 2014(6) Mh.L.J. 186 the learned Single Judge after discussing Hindu Law relating to the inheritance and succession which was in existence prior to the Act of 1956 coming into force observed in paragraph no.30 as under:—

¶327

“The order of succession of males in cases governed by Mitakshara is given in para 72 and it shows that widow gets along with son. It can be said that due to the provisions of Hindu Women’s Rights to Property Act, 1937 the widow is placed in the same category as that of son. The first category excludes the second and so on. In the past widow was listed in separate category and she was not placed along with son. Act of 1937 changed this position and widow

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came to be listed to the category of sons. Daughter remained in next category. In view of the provision of Hindu Law as mentioned in paragraphs 43 and 72 son and widow of the deceased started inheriting simultaneously. Only if nobody from that category was available then the daughter was to inherit. Under this Hindu Law which was in existence prior to 1956 daughters did not inherit until all the widows were dead.”

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(emphasis laid)

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25. We may also refer to the decision of the Supreme Court in the case of Kasabai Tukaram Karwar and Ors. vs. Nivruti (Dead Through Legal Heirs and Ors. MANU/SC/0923/2022. The Supreme Court in paragraph No.16 observed that the inheritance has to be examined when the succession opens and since in that case the succession opened in the year 1948, it was held that the daughter would have no right. Thus, when the death of a male member has taken place prior to 1956, the succession would open prior to 1956 and in view of the Act of 1937, a widow is recognised as heir and the daughter would have no right.

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26. The decision in the case of Pranjivandas Tulsidas and Jagmohandas Jamnadas vs. Devkuvarba wd/o Ramdas Hirchand (1859) 1 Bom 130 is also

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important to be noted for coming to the conclusion that during the period prior to 1956, a daughter would not have any inheritance right, if the widow survives on the death of her husband. The relevant observations of the said decision are re-produced:—

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“The widow, then, not having an absolute estate in the immovable property, it remains to determine who are entitled to the absolute interest subject to the estate taken by her. In this case there are daughters. Now, according to all the authorities, the daughters take next after the widow. What then is the nature of the estate they take? Here, again, there are differences of opinion, but, dealing with the question according to the three books I have mentioned, it appears to me that the daughters take an absolute estate. We find quoted in the Mayukha a passage from Manu: “The son of a man is even as himself, and the daughter is equal to the son; how then can any other inherit his property, but a daughter, who is as it were himself.” With reference to this point also I consulted the Shastris both here and at Puna, and inquired whether daughters could alienate any, and what, portion of the property inherited from a father who died separate. The answer was that

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daughters so obtaining property could alienate it at their will and pleasure, and in this the Shastris of both places agreed, both also referring to the above text in the Mayukha as their authority for that position. On reviewing all accessible authorities, I have come to the conclusion that daughters take the immovable property absolutely from their father after their mother’s death. ”

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(emphasis supplied)

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27. We are conscious that the views expressed by experts in their Commentaries on the subject of inheritance should not be read as a statute but same can certainly be referred to ascertain the practice prevailing during the period prior to the law being codified on inheritance. The views of experts on the said field have been considered by the Supreme Court in the case of Arunachala Gounder vs. Ponnusamy. In the said decision, it has been observed as under:

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A “Treatise on the Hindoo Law of Inheritance” by Standish Grove Grady published in 1868 by Gantz Brother Mount road, Madras at page 165 states:—

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“Failing male issue, therefore, a widow takes the self-acquired property of her husband. No doubt, on failure of male issue and a widow, the daughter would take.”

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28. It may also be relevant to refer to commentaries and annotations from “The Principle and Elements of Hindu Law” in the form of a digest by Shyama Charan Sarkar Vidya Bhushan, known as “Vyavastha Chandrika”, a digest of Hindu Law. Section II of the said digest deals with Daughters’ right of Succession.

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In Clause 118 of Section 11 of the Commentary, it is stated as under:

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“In default of the widow, the daughters inherit the estate of the man who died separated (from his coparceners) and not re-united (with them).”

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It also quotes “Vishnu” and “Vrihaspati” as under: “Vishnu : The wealth of a man who leaves no male issue goes to his wife; on failure of her, to his daughter.

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Vrihaspati: The wife is pronounced successor to the wealth of her husband; in her default, the daughter.

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As a son, so does the daughter of a man proceed from his several limbs.”

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Failing male issue, therefore, a widow takes the selfacquired property of her husband. No doubt, on the failure of male issue and a widow, the daughter would take.

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29. In the commentary titled as “Hindu Law and Judicature”from the “Dharma-sastra of Yajnavalkya” by renowned authors Edward Roer, PhD, MD and W.A. Montriou, in Clause 135, it is stated as under:

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“135. If a man depart this life without male issue; (i) his wife, (ii) his daughter, (iii) his parents, (iv) his brothers, (v) the sons of his brothers, (vi) others of the same gotra, (vii) kindred more remote, (viii) a pupil, (ix) a fellow-student these succeed to the inheritance, each class upon failure of the one preceding. This rule applies to all the caste.”

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30. The Privy Council in the case of Rajah Shiva Gunga 1863 SCC OnLine PC 11 case observed that according to Mitakshara Law, property of a male deceased descended to widow/widows and thereafter, to daughters in default of male issue.

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31. In the case of Arunachala Gounder (supra), it has been further observed in paragraph 58 as under:—

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“58. A Full Bench of the Allahabad High Court, in Ghurpatari v. Sampatia, While considering the question whether a custom under which daughters are excluded from inheriting the property of their father can by implication exclude the daughters’ issues both males and females, also from such inheritance, made the following observations in respect of Right of Inheritance of a widow or a daughter of a male Hindu dying intestate: (SCC OnLine All para 17)

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“17. The rules relating to inheritance by widow and daughter were enunciated in the ancient past by various sages and were ultimately elaborated by Vijnyaneshwara in Mitakshara. We may quote from Colebrooke’s translation.

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Katyayan said ‘let the widow succeed to her husband's wealth, provided she be chaste; and in default of her let the daughter inherit if married. Brihaspati stated, ‘the wife is pronounced successor to the wealth of her husband; and in her default the daughter;as a son so does the daughter of a man proceed

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from his several limbs, how then shall any other person take the father’s wealth’? Vishnu laid down, ‘if a man leaves neither son, nor son’s son, nor wife, nor female issue, the daughter’s son shall take his wealth, for in regard to the obsequies of ancestors, daughter’s son is considered as son’s son.…..”

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32. Mulla on “Principles of Hindu Law, 18^th Edition” is relevant to throw some light on the issue under consideration. The relevant clauses of the said commentary are reproduced:—

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“42. SUCCESSION IN THE BOMBAY STATE

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The rules of inheritance in force in the Bombay state differ in some respect from those in force in the Benares, Mithila and Madras schools. Again, in those parts of the Bombay state, where the Mayukha is the prevailing authority, that is, the island of Bombay, Gujarat and the North Konkan, the rules of inheritance are in some respects different from those prevailing in other parts of the state. The order of succession in the Bombay state is given separately in chapter VI (71-77).

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43. ORDER OF SUCCESSION AMONG SAPINDAS The sapindas succeed in the following order:

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1-3 Son, grandson (son’s son) and greatgrandson (son’s son’s son), and (after 14 April 1937) widow, predeceased son’s widow, and predeceased son’s predeceased son’s widow.

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4A Predeceased son’s widow, widow of predeceased son of predeceased son (see 35).

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5. Daughter

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(1) Priority Among Daughters

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Daughters do not inherit until all the widows are dead. As between daughters, the inheritance goes first to the unmarried daughters, next, to daughters who are married and ‘unprovided for’, ie, indigent, and lastly, to daughters who are married and are ‘enriched’, i.e. possessed of means. A married daughter may be a widow. No member of the second class can inherit while any member of the first class is in existence, and no member of the third class can inherit while any member of the first or the second class is in existence. The rule about one married daughter excluding the other married daughter from inheritance comes into operation, only if one daughter is indigent and the other is possessed of wealth. It does not apply where both the daughters are

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financially well off and well placed in life. The rules of preference are those stated above and there is no rule of preference that a daughter who is without issue is to be preferred to one with issue. Nor is there any rule that a daughter who is married to an idol and leads the life of a prostitute is to be preferred to her married sisters.

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“(iv) In the Bombay State

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Rules (ii) and (iii) do not apply in the Bombay state (see 72, No.7). A has two daughters B and C.B has a daughter D. On A’s death, his estate will go to B and C. In places other than the Bombay state, they each take a ‘woman’s estate’ with rights of survivorship. Therefore, on B's death, her interest in the estate will go, not to her daughter D, but her sister C by survivorship. In the Bombay state, however, it is different. There on A’s death, B and C will each take an absolute interest in a moiety of the estate so that on B’s death, her moiety will go to her heir D, and on Cs death, her moiety will go to her own heirs.”

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“72. ORDER OF SUCCESSION IN CASES GOVERNED BY MITAKSHARA

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The following is the order of succession to males among sapindas in the Bombay state in cases governed by Mitakshara:

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1-6 Son, son’s son (whose father is dead) and son’s son’s son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1947, the widow, the predeceased son’s widow, and the widow of a predeceased son of a predeceased son, are also recognised as heirs (see 43). See notes to 43 nos 1-4.

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7 Daughter

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See 43, no 5, notes (i), (iv)-(vii).

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In the Bombay state, daughters do not take as joint tenants with benefits of survivorship, but they take as tenants-in-common. Further, a daughter in that state does not take a limited estate in her father’s property, but takes the property absolutely: Thus, if a Hindu governed by the Bombay school dies leaving two daughters, each daughter takes an absolute interest in a moiety of her father’s estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana (170).”

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33. Coming to the decision in Laxman Tukaram (supra), it can be seen that reference therein has been made to paragraph 72 in Chapter VI of Principles of Hindu Law by Mulla. Said Chapter relates to the law with regard to the order of succession to males in the Bombay State. It is however necessary to note that paragraph 43 of the same work refers to the order of succession among Sapindas. A daughter is shown entitled to inherit only after the death of a widow. The learned Single Judge in Laxman Tukaram (supra) failed to notice paragraph 43 while determining the rights of parties therein which resulted in giving an equal share to the daughter along with the widow.

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In our view, to the above extent, Laxman Tukaram (supra) does not lay down the correct proposition wherein it holds a daughter entitled to an equal share with that of the widow. The judgment in the case of Gurudayalsing (supra) in paragraph No.35 also refers to decision in Laxman Tukaram (supra) and observes that the position of law prevailing prior to coming into force of the Act of 1956 was not considered by the Court while deciding the case of Laxman Tukaram (supra).

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34. Mr. Apte, learned Senior Counsel relied upon paragraphs 63 to 77 of the decision of the Supreme Court in the case of Vineeta Sharma (supra), in

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support of his submission that a daughter would have inheritance right in the father’s property even if the father died prior to 1956. We fail to understand how these paragraphs referred to are of any assistance in the present context. The said paragraphs deal with the provisions of Section 6 post the 2005 Amendment, whereby a daughter was treated as equal co-parcenary. On the contrary, the said paragraph expressly states that the amended provision giving equal rights to a daughter would apply only to a situation where death occurs after the date of amendment. Thereby implying that if a person dies prior to 1956 then certainly these paragraphs cannot be of any assistance to ascertain the daughter’s right since the issue of inheritance opened up prior to 1956 on the death of such person.”

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In light of the settled principles laid down by the Apex court in the case of Eramma and the Bombay High Court's decision in the case of Radhabai Balashaheb

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Shirke , the daughter is not entitled for share in the suit properties, as the father died prior to coming into force of the Act, 1956, accordingly substantial question of law No.2 is answered and this Court pass the following:

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