SAHEB REDDY Vs SHARANAPPA
Bench: ANIL R. DAVE,L. NAGESWARA RAO
Case number: C.A. No.-000901-000901 / 2014
Diary number: 13893 / 2012
Advocates: ABDUL AZEEM KALEBUDDE Vs
GUNTUR PRABHAKAR
Page 1
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 901 OF 2014
Saheb Reddy ....Appellant
VERSUS
Sharanappa and Ors ….Respondents
J U D G M E N T
ANIL R. DAVE, J.
1. The appellant - original defendant no.1 is aggrieved by the
judgment dated 15th December, 2011 of the High Court of
Karnataka, Circuit Bench at Gulbarga, rendered in Regular
Second Appeal No. 7310 of 2009, whereby the High Court has
allowed the appeal of the appellant herein by setting aside the
judgment and decree of the first appellate Court dated 31st
August, 2009 and restored the judgment and decree dated 9th
February, 2007 rendered by the trial Court.
2. For the purpose of convenience, the parties to the litigation
have been referred to as they were before the trial Court. As the
Page 2
2
matter pertains to partition of the family property, the following
chart would give a better idea of the relationships among the
parties:
Bheemanna Gaded
Smt. Sharnappa Shri Sharnappa
Saheb. Smt. Smt. Smt. Reddy Kyadigamma Nagamma Sarojamma {Adopted Son (D-1)}
Channamma (D-2)
Sharnappa Neelamma Vijaylaxmi Malamma (Plaintiff) (D-4) (D-5) (D-6)
D-3 D-7 D-8 D-9
3. The brief facts, which are necessary for proper appreciation
of the dispute among the parties, in a nutshell, are as follows:-
The plaintiff-Respondent No.1 herein, son of Smt.
Nagamma and grandson of late Shri Sharnappa Gaded, filed
Civil Suit OS No. 22 of 2005 in the Court of Civil Judge (Senior
Division), Yadgir for partition and separate possession of his
share by metes and bounds and with a prayer to put him in
Page 3
3
possession of the suit property and for a declaration that
registered adoption deed dated 9.2.1971 is null and void and for
other consequential reliefs.
4. The case of the plaintiff was that Shri Sharnappa Gaded,
son of Late Bheemanna Gaded, was the last holder of the suit
properties, who died intestate in 1957 and had left behind him
his wife Smt. Sharnappa and three daughters namely Smt.
Kyadigamma (defendant No. 4), Smt. Nagamma (defendant No.
5) and Smt. Sarojamma (defendant No. 6).
5. On the demise of Shri Sharnappa Gaded in the year 1957,
suit properties had devolved upon his wife Smt. Sharnappa and
the aforestated three daughters in equal shares and the female
heirs became absolute owners of their respective shares. No
partition was effected among the four sharers and in the course
of time, three daughters died during the life of their mother Smt.
Sharnappa, leaving behind their respective undivided share in
the suit properties, which devolved upon their respective heirs.
6. Upon death of Smt. Nagamma, her undivided share
devolved upon the plaintiff along with his three sisters, being
defendant nos.4, 5 and 6. Likewise, it was contended that
undivided 1/4th share of Smt. Kyadigamma in suit properties
Page 4
4
devolved upon her only daughter named Smt. Channama-
defendant no. 2, who is the wife of the present appellant and
undivided share of 1/4th of Smt. Sarojamma devolved upon
defendant no. 3 and defendant nos. 7 to 9. The plaintiff had
further pleaded that he was a member of the undivided family
and after death of his grandmother Smt. Sharnappa, difference
arose among the family members and therefore, he demanded
his legitimate share on 9.12.2004 from the defendants but
defendant No.1 refused to give any share to him. It was further
contended that defendant No.1, the present Appellant, claimed
to have been adopted by late Smt. Sharnappa, but, in fact, there
was no execution of any adoption deed and requisite ceremony
for adoption of defendant no.1 had also not been performed and
therefore, defendant no.1 had no right in the property. It was
further submitted that defendant no.1 married defendant no.2,
daughter of Smt. Sharnappa and therefore, defendant no.1, the
present Appellant, was trying to usurp the entire suit property
by denying the share of the plaintiff.
7. On the other hand, it had been submitted on behalf of
defendant no.1 that the plaintiff was not in possession of the
suit properties along with other defendants as a member of an
Page 5
5
undivided family. It had been submitted that as late Smt.
Sharnappa had no male issue, she had adopted defendant no.1,
who had married defendant no.2. It had been further submitted
that as defendant no.1 was an adopted son of Smt. Sharnappa,
defendant no.1 had performed all religious ceremonies including
the rituals of making payment to other defendants and other
female members upon death of Smt. Sharnappa. It had been
submitted that Smt. Sharnappa had adopted defendant no.1 by
virtue of adoption deed dated 9th February, 1971, which had
been duly registered and from the date of adoption, defendant
no.1 had started living with his adoptive mother and had also
enjoyed the suit property as an owner thereof. The property had
also been mutated in the name of defendant no.1 and the said
mutation had also been challenged. Alternatively, it was
submitted that as defendant no.1 was in possession of the suit
property for more than 34 years, he had also become the owner
by adverse possession of the suit property.
8. The trial Court by a judgment and decree dated 9th
February, 2007, in view of the registered adoption deed and
upon considering other evidence, came to the conclusion that
defendant no.1 was an adopted son of Smt. Sharnappa and held
Page 6
6
that the adoption of defendant no.1 would not take away right
and interest of other members of the family, which they had
received prior to the date of adoption by virtue of the provisions
of Section 12(c) of the Adoption Act. Thus, the trial Court
decreed the suit and ordered that the plaintiff was entitled to
1/16th share in the suit property as the property of late Shri
Sharnappa Gaded had been divided into four parts. One part
was inherited by his widow – Smt. Sharnappa and three parts
had been inherited by his three daughters, named hereinabove.
Smt. Nagamma, being one of the daughters had received 1/4th
share and the plaintiff being one of the four children of late Smt.
Nagamma, had received 1/4th share of Smt. Nagamma and thus
the plaintiff was entitled to 1/16th share in the suit property.
9. Being aggrieved by the judgment and decree of the trial
Court, defendant no.1 preferred First Appeal No 30/2007 before
the Fast Track Court, Yadgir (hereinafter referred to as the “first
appellate Court”). The plaintiff also preferred an appeal
contending that in addition to 1/16th share, he was also entitled
to a further share in 1/4th share of his deceased grandmother,
Smt. Sharnappa.
Page 7
7
10. The first appellate Court, vide judgment and decree dated
31st August, 2008 dismissed the appeal filed by defendant no.1
and partly allowed the appeal filed by the plaintiff by giving the
plaintiff and his sisters 1/4th share in their mother’s 1/4th
share in all the suit properties as granted by the trial Court and
in addition thereto their mother’s 1/4th share in the share of
Smt. Sharnappa in all the suit properties and came to the
conclusion that the trial Court did not consider the fact that
Smt. Sharnappa had died intestate and by virtue of the
provisions of Section 15 of the Hindu Succession Act, 1956
(herein after referred to as “the Succession Act”) all the family
members had got share in the properties of late Smt.
Sharnappa. The first appellate Court had held that defendant
no.1, who had been adopted on 9th February, 1971 would get
1/4th share of his adoptive mother’s property, whereas the
plaintiff would get not only 1/16th share of the property, but also
1/64th share of the property of Smt. Sharnappa for the reason
that Smt. Sharnappa had one adopted son and three daughters
and therefore, the plaintiff would, at the first instance, get 1/4 th
share of Smt. Nagamma, the property which she had inherited
from her mother Smt. Sharnappa and further 1/64th share from
Page 8
8
the property of Smt. Sharnappa (grandmother) as Smt.
Sharnappa had died intestate. Thus, the plaintiff was entitled to
5/64th share in the suit property.
11. Being aggrieved by the judgment of the first appellate
Court, defendant no.1 filed Regular Second Appeal no.7310 of
2009 before the High Court. The High Court by the impugned
judgment accepted the said second appeal by setting aside the
judgment of the first appellate Court and restored the judgment
and decree of the trial Court.
12. We have heard the learned counsel at length, on facts as
well as on legal issues. The issues involved in the instant case
also pertain to facts. The core question which, in our opinion,
arises for our consideration in this appeal is whether the High
Court has rightly allocated share of the properties among the
family members in accordance with the Hindu Succession Act,
1956.
13. It is undisputed that late Shri Sharnappa died intestate in
the year 1957 leaving behind him his wife Smt. Sharnappa and
three daughters namely Smt. Kydigamma, Smt. Nagamma and
Smt. Sarojamma. In the instant case, there was no coparcenary,
as Late Shri Sharnappa was the sole male member in the family.
Page 9
9
In the circumstances, upon his death his properties were
inherited by his widow and three daughters.
14. At the time when Shri Sharnappa died in 1957, defendant
no.1 was not in the picture as he was adopted by Smt.
Sharnappa on 9th February, 1971. By virtue of proviso to
Section 12 of the Adoption Act, an adopted child cannot divest
any person of any estate which vested in him or her before the
adoption. Thus, the property of late Shri Sharnappa which,
upon his death in 1957, had vested in his widow and three
daughters, would not be disturbed by virtue of subsequent
adoption of defendant no.1.
15. So far as inheritance of the suit property in favour of the
plaintiff is concerned, in our opinion, the first appellate Court
was correct to the effect that the plaintiff would inherit not only
property of his mother, Smt. Nagamma along with his three
sisters, but he would also have share in the properties of his
grandmother, late Smt. Sharnappa. Smt. Sharnappa had also
not prepared any Will and as she had died intestate, her
property would be divided among her adopted son i.e. defendant
no.1 and heirs of her three daughters, who had predeceased
Smt. Sharnappa. Smt. Sharnappa was having 1/4th share in the
Page 10
10
entire property, which she had inherited from her husband late
Shri Sharnappa. One of the daughters being Nagamma, heirs of
Nagamma would inherit 1/4th share of property of Smt.
Sharnappa and the plaintiff being one of the four heirs of late
Smt. Nagamma, would get 1/64th share from the property of his
grandmother Smt. Sharnappa.
16. As originally Smt. Sharnappa was to get 1/4th share from
the property of Shri Sharnappa, from her 1/4th share, the
properties would be inherited by her adopted son and heirs of
her predeceased daughters. As stated hereinabove, the plaintiff
would be getting 1/16th share in the property of Smt. Nagamma
and 1/64th share upon death of Smt. Sharnappa and thus, the
plaintiff would be getting 5/64th share in the suit property,
whereas defendant no.1 would get 1/16th share of the suit
property.
17. Upon appreciation of the evidence, it was found by the trial
Court that the adoption was valid because that was by virtue of
a registered adoption deed and the said deed had been duly
proved. In the circumstances, we do not think it necessary to
discuss the said evidence again. We confirm the view of the first
appellate Court that the adopted son viz. defendant no.1 would
Page 11
11
not divest any person in whom the property had been vested
prior to adoption. Section 12 of the Hindu Adoptions and
Maintenance Act, 1956 reads as under :-
“12 Effects of adoption. - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that—
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”
18. Looking at the aforestated provisions of Section 12 of the
Adoption Act, it is crystal clear that the property which had been
vested in the widow and three daughters of late Shri Sharnappa
Gaded in 1957 would not be disturbed because of adoption of
defendant no.1, which had taken place on 9th February, 1971.
Thus, Smt. Sharnappa had become absolute owner of 1/4th
Page 12
12
share and Smt. Nagamma, the mother of the plaintiff had also
become an owner of 1/4th share of the property belonging to late
Shri Sharnappa Gaded.
19. In view of the aforestated legal position, upon hearing the
learned counsel, we are of the view that the High Court had
committed an error by setting aside the judgment and decree of
the first appellate Court and therefore, we set aside the
impugned judgment and restore the judgment and decree of the
first appellate Court.
20. The appeal is, accordingly, allowed with no order as to
costs.
.…………………………….J. (ANIL R. DAVE)
……………………………..J. (L. NAGESWARA RAO)
NEW DELHI NOVEMBER 16, 2016.