Ashok S/O Maleppa Vs Gurappa S/O Shantappa Biradar and Ors.

REPRESENTED BY POWER OF ATTORNEY HOLDER SRI. SHIVALINGAPPA S/O GADIGEPPA BIRADAR AGE: 39 YEARS, OCC: SERVICE, R/O DHANYAL VILLAGE, TQ. AND DIST. BIJAPUR-586105.

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…..APPELLANTS

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(BY SRI. MANVENDRA REDDY, ADVOCATE)

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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AND:

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GURAPPA S/O SHANTAPPA BIRADAR, AGE: 31 YEARS, OCC: AGRICULTURE, R/O DHANYAL VILLAGE, TQ. AND DIST. BIJAPUR-586105.

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SMT. GURUBAI W/O SHANTAPPA BIRADAR, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O DHANYAL VILLAGE, TQ. AND DIST. BIJAPUR-586105.

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MAHADEV S/O SHEKAPPA HUKKERI, AGE: 37 YEARS, OCC: AGRICULTURE, R/O H.NO.LIG-111, ADARSH NAGAR, BLDE ROAD, BIJAPUR-586103.

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RAMANNA S/O SIDRAMAPPA HATTI AGE: 59 YEARS, OCC: AGRICULTURE, R/O HEBBALHATTI, TQ. AND DIST.BIJAPUR-586105.

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…RESPONDENTS

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(BY SRI AJAYAKUMAR A.K., ADVOCATE FOR R1 & R2; SRI SHIVANAND PATIL, ADVOCATE FOR R3 & R4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 15.09.2012 PASSED IN O.S.NO.123/2007 BY THE PRL.SENIOR CIVIL JUDGE, BIJAPUR AND WHICH IS CONFIRMED IN R.A.NO.181/2012 BY THE III ADDL. DISTRICT JUDGE, BIJAPUR, VIDE JUDGMENT AND DECREE DATED 18.03.2014 AND CONSEQUENTLY DISMISS THE SUIT OF THE PLAINTIFF WITH COST.

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IN RSA NO.200417/2014: BETWEEN:

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MAHADEV S/O SHEKAPPA HUKKERI, AGE: 37 YEARS, OCC: AGRI HOUSE NO.LIG-111,

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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ADARSHA NAGAR, BLDE ROAD, BIJAPUR.

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RAMANNA S/O SIDRAMAPPA HATTI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O HEBBALHATTI, TQ. BIJAPUR-586112.

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…..APPELLANTS

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(BY SRI SHIVANAND PATIL, ADVOCATE)

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AND:

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GURAPPA S/O SHANTAPPA BIRADAR, AGE: 31 YEARS, OCC: AGRICULTURE, R/O DHANYAL VILLAGE, TQ. BIJAPUR-586110.

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GURUBAI W/O SHANTAPPA BIRADAR, AGE: 41 YEARS, OCC: HOUSEHOLD, R/O HEBBALHATTI, TQ. BIJAPUR-586112.

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ASHOK S/O MALEPPA @ MALEGONDAPPA AWATI,

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AGE: 41 YEARS, OCC: AGRICULTURE, R/O DHANYAL VILLAGE TQ, BIJAPUR-586110.

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SMT. SUVARNA W/O MALLAPPA BALAGANVI, AGE: 42 YEARS, OCC: HOUSEHOLD, R/O HEBBALHATTI, TQ. BIJAPUR-586112.

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…RESPONDENTS

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(BY SRI. AJAYAKUMAR A. K, ADVOCATE FOR R1 & R2 SRI. MANVENDRA REDDY, ADVOCATE FOR R3; SRI. S. S. MAMADAPUR, ADVOCATE FOR R4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO CALL FOR THE AND EXAMINE THE RECORDS IN O.S.NO.123/2007 ON THE FILE OF PRL.SENIOR CIVIL JUDGE AT BIJAPUR AND R.A.186/2012 ON

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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THE FILE OF III ADDL. DISTRICT JUDGE AT BIJAPUR AND ALLOW THE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 15.09.2012 IN O.S.NO.123/2007 AND IN R.A.NO.186/2012 AND THE JUDGMENT DATED 18.03.2014.

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IN RSA CROB NO.200004/2023: BETWEEN:

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GURAPPA S/O SHANTAPPA BIRADAR, AGE: 40 YEARS, OCC: AGRICULTURE, R/O DHANYAL VILLAGE, TQ. AND DIST. VIJAYAPUR-586225.

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GURUBAI W/O SHANTAPPA BIRADAR, AGE: 62 YEARS, OCC: HOUSEHOLD, R/O DHANYAL VILLAGE, TQ. AND DIST. VIJAYAPUR-586225.

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…..CROSS OBJECTORS

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(BY SRI AJAYAKUMAR A.K., ADVOCATE)

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AND:

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ASHOK S/O MALEPPA @ MALEGONDAPPA AWATI, FALSELY ALLEGED TO BE BIRADR, AGE: 50 YEARS, OCC: AGRICULTURE, R/O DHANYAL VILLAGE TQ. & DIST. VIJAYAPUR-586225.

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SMT. SUVARNA W/O MALLAPPA BALAGANVI, CALLING HERSELF AS D/O MALAGONDAPPA BIRADAR, AGE: 51 YEARS, OCC: HOUSEHOLD, R/O HEBBALHATTI, TQ. & DIST. VIJAYAPUR-586226.

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MAHADEV S/O SHEKAPPA HUKKERI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O H.NO.LIG-111, ADARSH NAGAR,

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HC-KAR

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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BLDE ROAD,

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TQ. & DIST. VIJAYAPUR-586102.

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RAMANNA S/O SIDRAMAPPA HATTI, AGE: 68 YEARS, OCC: AGRICULTURE, R/O HEBBALHATTI, TQ. & DIST. VIJAYAPUR-586226.

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…RESPONDENTS

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(BY SRI MANVENDRA REDDY, ADVOCATE FOR R1 & R2; SRI SHIVANAND PATIL, ADVOCATE FOR R3 & R4)

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THIS REGULAR SECOND APPEAL CROB. IS FILED UNDER ORDER 41 RULE 22 OF THE CODE OF CIVIL PROCEDURE PRAYING TO ALLOW CROSS OBJECTION AND DISMISS RSA NO.200336/2014, SET ASIDE THE PART OF THE JUDGMENT AND DECREE DATED 18.03.2014 IN R.A.NO.181/2012 BY THE III ADDL. DISTRICT JUDGE VIJAYAPUR IN SO FAR AS IT HAS DISMISSED THE SUIT WITH RESPECT TO THE DECLARATION GRANTED ½ EXTENTS OF THE SUIT PROPERTIES AND DISMISSING THE SUIT IN RESPECT OF PERPETUAL INJUNCTION.

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THESE APPEALS AND CROSS OBJECTION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.12.2025 THIS DAY JUDGMENT WAS PRONOUNCED THEREIN, AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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C.A.V JUDGMENT

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RSA No.200336/2014 and RSA No.2000417/2014 are filed by defendant Nos.1 to 4 respectively and RSA Crob.No.200004/2023 is filed by the plaintiffs questioning

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the judgment and decree rendered by the Courts below.

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HC-KAR

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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For the sake of brevity, rank of the parties is

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referred to as per their rank before the Trial Court.

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3. The family tree is as under:

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Bhimappa Adoptive S/o. Paramagond Biradar

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Bagawwa (Wife ) dead

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Maleppa @ Malegondappa Shantappa S/o. Bhimappa S/o. Bhimapp Awati Biradar born after adoption

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Born prior to adoption of Gurubai (Wife) (Plaintiff No.2)

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Bhimappa

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Gurappa (Plaintiff No.1) Suvarna Ashok (Def.No.2) (Def. No.1)

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4. Facts leading to the case are as under:

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The plaintiffs are the widow and son of late Shantappa. It

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is not in dispute that one Bhimappa was the natural (genitive) father of both Maleppa and Shantappa. Maleppa

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@ Malegondappa, through whom defendant Nos.1 and 2

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trace their claim, was born on 06.07.1937. Subsequent to the birth of his first son Maleppa, Bhimappa was taken in adoption by Smt. Gangawwa, wife of Paramagond Biradar, under a registered adoption deed dated 15.09.1943. The factum of adoption is admitted by all the parties. Bhimappa died on 21.05.1987.

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The case of the plaintiffs is that Shantappa, having been born after the adoption, exclusively succeeded to the properties left behind by Bhimappa. According to them, Maleppa, having been born prior to the adoption, did not acquire any right, title or interest in the suit schedule properties. Proceeding on this premise, the plaintiffs alleged that the ancestor of defendant Nos.1 and 2, namely Maleppa @ Malegondappa, in collusion with the Village Accountant and the Revenue Inspector, managed to secure a false mutation entry in M.E.No.2872 by manipulating the revenue records behind their back and without their knowledge. The said mutation entry was

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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assailed by the plaintiffs by filing a revision petition before the Deputy Commissioner.

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During the pendency of the proceedings before the revenue authorities, the plaintiffs further came to know that defendant Nos.1 and 2, despite having no semblance of right over the suit schedule properties, had taken advantage of the disputed mutation entry and alienated the suit schedule properties in favour of defendant Nos.3 and 4. Consequently, the plaintiffs instituted a suit in O.S.No.123/2007 seeking a declaration

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that they are the absolute owners of the suit schedule properties and for consequential reliefs of permanent injunction restraining defendant Nos.1 and 2 as well as defendant Nos.3 and 4 from interfering with their possession. The plaintiffs also sought a mandatory injunction directing deletion of the names of defendant Nos.1 and 2 from the revenue records pertaining to the suit schedule properties.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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Defendant Nos.1 and 2 entered appearance and

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filed their written statement, stoutly denying all the averments made in the plaint. On the contrary, they contended that Bhimappa had inherited the suit schedule properties from his father and that, upon the death of Bhimappa, both the plaintiffs and defendant Nos.1 and 2 succeeded to the suit schedule properties as his legal heirs under Section 8 of the Hindu Succession Act. In paragraph No.6 of the written statement, defendant Nos.1 and 2 specifically pleaded that a partition had taken place in respect of the suit schedule properties and furnished particulars thereof. They asserted that the said partition was acted upon, mutation entries were effected accordingly and, upon the death of their father Maleppa, their names were mutated under M.E.No.2929. Defendant Nos.1 and 2 thus claimed that they were entitled to an equal share along with the plaintiffs. They also admitted that the suit schedule properties had been alienated in favour of defendant Nos.3 and 4, who were in possession of the same.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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Defendant Nos.3 and 4, the subsequent

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purchasers, also filed their written statement, contesting

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the suit and supporting the case of defendant Nos.1 and 2.

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The parties led oral and documentary evidence.

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The Trial Court, while answering Issue No.1 in the affirmative, held that the plaintiffs had succeeded in establishing their absolute title over the suit schedule properties. The Trial Court further held that Maleppa, having been born prior to the adoption of Bhimappa, did not acquire the status of a coparcener in the adoptive family and, therefore, defendant Nos.1 and 2 had not derived any right or title in the suit schedule properties. Issue Nos.2 and 3 were also answered in the affirmative, holding that the plaintiffs were in lawful possession and were entitled to the relief of injunction. The plea of prior partition set up by defendant Nos.1 and 2 was rejected and, accordingly, Additional Issue No.1 was answered in the negative. Additional Issue No.2 was also answered against defendant Nos.3 and 4, holding that they had

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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failed to establish that they were bona fide purchasers. The Trial Court disbelieved the plea of partition primarily on the ground that defendant Nos.1 and 2 had no right in the suit schedule properties, as their father was born prior to the adoption.

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Aggrieved by the judgment and decree of the Trial Court, defendant Nos.1 and 2 preferred an appeal in R.A.No.181/2012, while defendant Nos.3 and 4 preferred a separate appeal in R.A.No.186/2012.

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The First Appellate Court, upon re-appreciation

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of the entire evidence on record, reversed the findings of the Trial Court on Issue No.1 and held that the plaintiffs were not entitled to a declaration of absolute ownership over the suit schedule properties. Placing reliance on the law laid down by the Division Bench of this Court in Smt.

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Neelawwa v. Smt. Shivawwa, reported in ILR 1988

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KAR 2761, the First Appellate Court held that Maleppa,

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though born prior to the adoption, was nevertheless entitled to an equal share in the suit schedule properties.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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However, the First Appellate Court proceeded to declare that the plaintiffs were entitled only to a half share in the suit schedule properties and relegated defendant Nos.1 and 2 to work out their claim for the remaining half share by instituting a separate suit for partition.

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Challenging the judgment and decree passed by the First Appellate Court, defendant Nos.1 and 2 have preferred RSA No.200336/2014, while defendant Nos.3 and 4 have preferred RSA No.200417/2014.

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Heard the learned counsel appearing for plaintiff and learned counsel appearing for defendants Nos.1 and 2.

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This Court, by order dated 15.03.2023, admitted RSA No.200336/2014 and RSA No.200417/2014 on the following substantial questions of law:

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In RSA No.200336/2014

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1. Whether the Courts below are justified in not considering that there was prior partition in

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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which the suit properties had fallen to the share of defendant Nos.1 and 2?

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In RSA No.200417/2014

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2. Whether the first appellate Court was justified in dismissing the appeal without applying the principles of the equity in the light of recording of finding that the defendant Nos. 1 and 2 would be owner of the 1/2 share in the suit properties and having sold their share to the defendant Nos.3 and 4?

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3. Whether the first appellate court is justified in granting the decree which is not prayed for in the plaint?

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15. Following additional substantial question of law

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is framed in RSA Crob.No.200004/2023 by this Court vide order dated 12.12.2025.

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Whether the finding of the First Appellate Court that Maleppa though born prior to adoption, is entitled for share suffers from perversity?

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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Finding on Additional substantial question of law :

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The First Appellate Court, while following the law laid down by the Hon’ble Apex Court, has come to the conclusion that the plaintiffs are not the absolute owners of the suit schedule properties. While reversing the finding recorded by the Trial Court on Issue No.1, the First Appellate Court placed reliance on the judgment rendered by the Division Bench of this Court in Smt. Neelawwa v. Smt. Shivawwa (supra). The Division Bench, in the aforesaid judgment, has unequivocally held that a son born prior to the adoption of his father does not lose his right to claim a share in the properties of his genitive father, notwithstanding such adoption. On the said premise, the First Appellate Court denied the relief of declaration sought by the plaintiffs. This finding is assailed by the plaintiffs by filing RSA Crob. No.200004/2023.

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The finding recorded by the First Appellate

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Court that Maleppa, though born prior to the adoption of Bhimappa, is nevertheless entitled to a share in the suit

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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schedule properties, is neither perverse nor contrary to law. On the contrary, the said finding is in complete conformity with the law authoritatively declared by the Division Bench of this Court in Smt. Neelawwa v. Smt. Shivawwa , reported in ILR 1988 KAR 2761.

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The Division Bench, after an exhaustive consideration of the principles governing adoption under Hindu law, has categorically held that the birth of a son prior to the adoption of the father does not divest such son of his right to inherit the properties of his genitive father. The Division Bench clarified that while adoption results in the severance of ties between the adopted son and his natural family, such severance does not operate retrospectively so as to extinguish the vested or accruing rights of a son already born to the adopter prior to adoption. The right of such a son to succeed to the property of his genitive father continues unaffected by the subsequent adoption.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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The aforesaid legal position has received affirmation from the Hon’ble Apex Court in Kalindi Damodar Garde (Dead) by Legal Representatives v. Manohar Laxman Kulkarni and Others, reported in (2020) 4 SCC 335 , wherein the Hon'ble Supreme Court has referred to and relied upon the judgment of the Division Bench in Smt. Neelawwa (supra) while reiterating that adoption does not obliterate the rights of children born prior to adoption to succeed to the property of their natural parent.

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In the present case, the First Appellate Court has correctly applied the ratio laid down by the Division Bench by holding that Maleppa, though born prior to the adoption of Bhimappa, continued to retain his right of inheritance through his genitive father. Such a finding is based on settled principles of Hindu law and binding judicial precedent and, therefore, cannot be characterized as perverse or arbitrary.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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It is well settled that a finding can be termed perverse only when it is based on no evidence, ignores material evidence, or is founded on a patent misapplication of law. The finding recorded by the First Appellate Court does not suffer from any of these infirmities. On the contrary, it reflects a correct appreciation of the legal position governing the rights of a son born prior to adoption and is supported by authoritative pronouncements of this Court as well as the Hon’ble Supreme Court.

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Accordingly, the additional substantial question of law is answered in the negative , holding that the finding of the First Appellate Court recognizing the right of Maleppa to a share in the suit schedule properties does not suffer from perversity and warrants no interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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Finding on Substantial Question of Law Nos.1 and 2:

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The principal issue that arises for consideration is whether a son born prior to the adoption of his father is entitled to claim a share through such genitive father in the properties left behind by him. This issue is no longer res integra. The Division Bench of this Court, in Smt. Neelawwa (supra) , has conclusively settled the legal position. The said principle has also received the imprimatur of the Hon’ble Apex Court in Kalindi

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Damodar Garde (Dead) by Legal Representatives v. Manohar Laxman Kulkarni and Others, reported in (2020) 4 SCC 335 , wherein the judgment of the Division Bench in Smt. Neelawwa (supra) has been expressly referred to and approved.

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In the light of the settled legal position, the plaintiffs could not have maintained a suit seeking a declaration that they are the absolute owners of the suit schedule properties to the exclusion of the branch of Maleppa. The finding recorded by the Trial Court on Issue

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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No.1, holding that Maleppa, being a son born prior to adoption, had no right or interest in the suit schedule properties, is clearly perverse and contrary to the binding precedent of the Division Bench. Though the Trial Court has made a passing reference to the judgment in Smt. Neelawwa (supra), it has manifestly erred in failing to apply the ratio laid down therein, which recognizes the proprietary rights of a son born prior to adoption. Consequently, the reversal of the said finding by the First Appellate Court, to the extent it negatived the plaintiffs’ claim of exclusive ownership, does not warrant interference.

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However, having held that the plaintiffs were, at the highest, entitled only to a half share in the suit schedule properties, the First Appellate Court committed a serious error in not adverting to the crucial suggestions made by plaintiff's counsel while cross-examing DW.2 virtually acknowledging the partition between Malleppa(Defendant's father) and his father Shantappa.

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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These suggestions go to the very root of the controversy and have a direct bearing on the specific plea of prior partition set up by the defendants.

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This Court, therefore, deems it appropriate to advert to the relevant suggestions made by plaintiff counsel admitting partition between Malleppa and Shantappa. The relevant portion of the cross-examination of DW.2 is relevant and the same is extracted which reads as under:

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"It is true to say that, name of my father has not been entered in revenue records pertaining to the properties of Bhimappa as his successor. It is true to say that, as per M.E. No.2428 the properties of Bhimappa were divided among plaintiffs, Shanatappa and Bagavva. It is true to say that, after partition in the year 1992, Shantappa has sold out his properties as per Ex.P.6 & Ex.D.8. My father has not objected for sale of said properties and partition of the year 1992. It is true to say that, my father was knowing about partition of the year 1992 and sale transactions of Shantappa.

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My father himself got partitioned and obtained suit properties, but I cannot say with whom he got

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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partitioned. I do not know whether there is any registered document in respect of said partition."

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(Emphasis Supplied)

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On bare perusal of the above suggestions relating to partition, by suggesting above specific suggestions, plaintiff has, in unequivocal terms, admitted the factum of partition between the branch of Shantappa and the branch of Maleppa. The said suggestions clearly establish that the parties had effected a partition and were enjoying their respective shares separately. The culled out portion further strengthens the plea of prior partition set up by defendant wherein Shantappa acting on said partition has exercised exclusive rights and has sold his portion allotted to him in a partition. The fact of Shantappa alienating the property is accepted by plaintiff by suggesting alienation while cross- examining DW2.

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When the aforesaid suggestions elicited from DW.2 are read conjointly with the mutation entries effected pursuant to the partition of the year 1992, it becomes abundantly clear that Shantappa, during his

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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lifetime, had acknowledged and accepted the half share of Maleppa in the suit schedule properties. The very act of severance of status, followed by allotment of specific shares to the branch of Maleppa and corresponding revenue entries, unmistakably demonstrates that Shantappa never disputed the proprietary rights of the defendants over the suit schedule properties. This acknowledgment assumes significance, particularly in the context of the admitted position that Maleppa was born prior to the adoption, which nevertheless did not deter Shantappa from recognizing and affirming Maleppa’s share.

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Another significant and undisputed fact, which assumes considerable importance, is that Bhimappa was taken in adoption by Smt. Gangawwa, wife of Paramagond Biradar, under a registered adoption deed dated 15.09.1943. The adoption was effected by a widow prior to the codification of Hindu Law. In view of the settled principles governing pre-codification adoptions, such an

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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adoption relates back, and upon the demise of the adoptive mother, the adopted son steps into the adoptive family as if he were born therein. Consequently, upon the death of Smt. Gangawwa, Bhimappa became the absolute owner of the properties belonging to the adoptive family. Significantly, there is a complete absence of pleadings in the plaint asserting that the suit schedule properties are coparcenary properties.

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Though learned counsel for the plaintiffs attempted to contend that the suit schedule properties were coparcenary in nature and that Shantappa would, in any event, be entitled to a larger share by birth and by succession under Section 8 of the Hindu Succession Act, such a contention cannot be entertained in the absence of foundational pleadings. The plaint is conspicuously silent on the assertion that the suit schedule properties are coparcenary properties. On the contrary, the defendants have successfully substantiated their plea of prior partition by placing reliance on clear admissions elicited from PW.1

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HC-KAR

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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and on documentary evidence in the form of mutation entries evidencing partition and separate enjoyment.

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Once the factum of prior partition is established, the First Appellate Court, having modified the relief of declaration and having held that the plaintiffs were entitled only to a half share, gravely erred in mechanically affirming the finding of the Trial Court on Additional Issue No.1 without independently reappreciating the evidence relating to partition. The Trial Court had negatived the plea of partition solely on the erroneous premise that Maleppa had no right in the suit schedule properties, being a son born prior to adoption. This reasoning stood completely diluted once the First Appellate Court itself accepted that Maleppa was entitled to a half share.

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Despite such a finding, the First Appellate Court failed to record any independent finding on the controversy relating to prior partition, severance of status, and exclusive possession of the respective branches. An

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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HC-KAR

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appeal under Section 96 read with Order XLI of the Code of Civil Procedure is a statutory appeal, and the First Appellate Court, being the final fact-finding authority, is duty-bound to re-appreciate the entire evidence on record. Its failure to examine and adjudicate upon the defendants’ plea of prior partition, despite the availability of cogent oral and documentary evidence, vitiates the judgment to that extent.

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Accordingly, substantial question of law No.1 framed in RSA No.200336/2014 is answered in the negative against the plaintiffs. Substantial question of law No.2 framed in RSA No.200417/2014 is also answered in the negative . The plea of prior partition set up by the defendants stands duly established.

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Finding on substantial question of law No.3

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This Court while answering substantial question of law No.1 and additional substantial question of law has come to conclusion that the father of defendant Nos.1 and

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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2 despite being born prior to adoption was entitled for half share in the light of law laid down by the Division Bench rendered in the case of Smt. Neelawwa (supra), this Court has also meticulously examined the evidence let in by the defendants while recording finding that the severance in the family substantiated by the defendants once the entitlement of share by the father of defendant Nos.1 and 2 is upheld and further this Court having recorded a finding that there is already partition and the factum of partition is substantiated by rebuttal evidence let in by defendants coupled with crucial admissions elicited in the cross-examination of PW.1 who has admitted in unequivocal terms regarding severance in the family, the above substantial question of law needs to be answered in the negative . The Appellate Court having held that father of defendant Nos.1 and 2 is entitled for a share clearly erred in ignoring the admission elicited in the cross-examination of plaintiff coupled with rebuttal evidence substantiating factum of partition. Therefore, Appellate Court not only erred in dismissing the appeal but

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RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

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further erred in moulding the relief by granting relief of partition when the evidence clearly establishes factum of partition as pleaded by the defendants. Accordingly, the substantial question of law No.3 is answered in the Negative . The Appellate Court clearly erred in moulding the relief ignoring the severance in the family.

¶220

CONCLUSIONS AND REASONS FOR REVERSAL:

¶221

The Trial Court gravely erred in holding that Maleppa, being a son born prior to the adoption of Bhimappa, did not acquire any right, title or interest in the suit schedule properties. The said finding is contrary to the binding law laid down by the Division Bench of this Court in Smt. Neelawwa v. Smt. Shivawwa, ILR 1988 KAR 2761 , which has been expressly noticed and approved by the Hon’ble Apex Court .

¶222

The Trial Court, despite referring to the judgment in Smt. Neelawwa (supra), failed to apply the ratio laid down therein and proceeded on an erroneous

¶223

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¶224

HC-KAR

¶225

RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

¶226

premise that a son born prior to adoption is divested of all proprietary rights through the genitive father. The finding on Issue No.1 is, therefore, perverse and unsustainable in law.

¶227

The plaintiffs, having failed to establish an

¶228

exclusive title over the suit schedule properties, could not have maintained a suit seeking declaration of absolute ownership. The First Appellate Court was correct in

¶229

denying the relief of declaration to that extent.

¶230

However, the First Appellate Court committed a

¶231

manifest error in holding that the plaintiffs were entitled to a half share in the suit schedule properties without examining the defendants’ specific plea of prior partition, severance of status, and separate enjoyment.

¶232

The plea of prior partition was specifically pleaded by defendant Nos.1 and 2, supported by mutation entries and, more importantly, by categorical admissions elicited in the cross-examination of PW.1. These admissions unequivocally establish that Shantappa, during

¶233

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¶234

HC-KAR

¶235

RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

¶236

his lifetime, acknowledged and accepted the partition and

¶237

the half share of the branch of Maleppa.

¶238

The mutation entries effected pursuant to the partition of the year 1992, coupled with the admissions of PW.1, clearly demonstrate that the parties were in separate possession and enjoyment of their respective shares, thereby conclusively proving the factum of prior partition.

¶239

The Trial Court rejected the plea of partition solely on the erroneous ground that Maleppa had no right in the suit schedule properties. Once that foundational premise is found to be legally untenable, the finding of the Trial Court on Additional Issue No.1 cannot be sustained.

¶240

The First Appellate Court, having accepted that Maleppa was entitled to a share, was duty-bound, as the final fact-finding Court under Section 96 read with Order XLI CPC, to independently re-appreciate the evidence relating to prior partition. Its failure to do so vitiates the judgment.

¶241

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¶242

RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

¶243

HC-KAR

¶244

There is a complete absence of pleadings in the

¶245

plaint that the suit schedule properties are coparcenary in nature. In the absence of such foundational pleadings, the plaintiffs’ attempt to claim a larger share by birth or under Section 8 of the Hindu Succession Act is wholly misconceived.

¶246

The undisputed fact that Bhimappa was taken in adoption by a widow under a registered deed dated 15.09.1943, prior to the codification of Hindu law, attracts the doctrine of relation back. Upon the demise of the adoptive mother, Bhimappa became the absolute owner of

¶247

the properties of the adoptive family, and the rights flowing therefrom stood crystallized much prior to the institution of the suit.

¶248

In view of the established prior partition, the plaintiffs are not entitled to seek declaration, injunction, or mandatory reliefs in respect of the suit schedule properties.

¶249

RSA No. 200336/2014 C/W RSA NO.200417/2014 RSA CROB 200004/2023

¶250

HC-KAR

¶251

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¶252

Consequently, the judgments and decrees

¶253

passed by the Trial Court and the First Appellate Court suffer from serious legal infirmities and are liable to be set aside.

¶254

For the foregoing reasons, this Court proceeds to pass the following:

¶255

ORDER

¶256

i. The Regular Second Appeals in RSA No.200336/2014 and RSA No.200417/2014 are hereby allowed.

¶257

ii. The judgment and decree dated 8.3.2014 passed by the First Appellate Court in R.A.No.181/2012 and R.A.No.186/2012, and the judgment and decree dated 15.9.2012 passed by the Trial Court in O.S.No.123/2007, are hereby set aside.

¶258