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     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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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.