Karnataka High Court
Ningappa Gurulingappa Metri And Anr vs Smt. Savitri W/O Ramagond Malli on 3 January, 2024
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RSA No. 7326 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7326 OF 2012 (PAR/POS)
BETWEEN:
1. NINGAPPA GURULINGAPPA METRI,
(SINCE DEAD BY HIS LEGAL REPRESENTATIVE
I.E., APPELLANT NO.2).
(AMENDED AS PER ORDER DTAED 10.4.2018)
2. ADITYA S/O ASHOK METRI,
AGED ABOUT 7 YEARS,
MINOR R/BY HIS GUARDIAN-NATURAL FATHER
ASHOK S/O RAMAPPA METRI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O DEVAR-NIMBARGI,
TQ. INDI, DIST. BIJAPUR - 586 101.
...APPELLANTS
Digitally signed (BY SRI. NARENDRA M. REDDY, ADVOCATE FOR
by SACHIN SRI. MANVENDRA REDDY, ADVOCATE FOR APPELLANT NO.2;
Location: HIGH APPELLANT No.2 IS TREATED AS LR'S OF DECEASED
COURT OF
KARNATAKA APPELLANT No.1 V/O DTD. 10.04.2018)
AND:
SMT. SAVITRI W/O RAMAGOND MALLI,
AGE: 47 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O HONNALLI, TQ. BIJAPUR.
DIST. BIJAPUR-586 101.
...RESPONDENT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
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RSA No. 7326 of 2012
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED 22.09.2012 PASSED IN
R.A.NO.159/2011 ON THE FILE OF THE I ADDL. DISTRICT
JUDGE AT BIJAPUR, MODIFYING THE JUDGMENT AND DECREE
DATED 17.09.2011 IN O.S.NO.218/2007 BY THE SENIOR CIVIL
JUDGE, INDI.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants/appellants
challenging the judgment and decree dated 22.09.2012 in
R.A. No.159/2011 on the file of I Addl. District Judge,
Bijapur, modifying the judgment and decree dated
17.09.2011 in O.S. No.218/2007 on the file of Senior Civil
Judge, Indi, in respect of share of the parties.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. Relevant facts for adjudication of the appeal are
that, the plaintiff claims to be the daughter of defendant
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No.1 and defendant No.2 is the adopted son of defendant
No1. It is the case of the plaintiff that she being one of the
members of the joint family of the parties to the suit is
entitled for share in the joint family property of her father
(defendant No.1.) and as such, the plaintiff filed O.S
No.218/2007 on the file of Trial Court, seeking relief of
partition and separate possession in respect of the suit
schedule properties.
4. On service of notice, the defendants entered
appearance and filed detailed written statement denying
the averments made in the plaint.
5. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
6. In order to substantiate their case, plaintiff has
examined 6 witnesses as PW.1 to PW.6 and got marked 7
documents as Exs.P1 to P7. The defendants have
examined 8 witnesses as DW.1 to DW.8 and got marked
10 documents as Exs.D1 to D10.
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7. The Trial Court after considering the material on
record, by its judgment and decree dated 17.09.2011,
decreed the suit holding that the plaintiff is entitled for
1/3rd share in the suit properties. Feeling aggrieved by the
same, the plaintiff has filed R.A. No.159/2011 before the
First Appellate Court and the appeal was resisted by the
defendants.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
22.09.2012, allowed the appeal and as such, held that the
plaintiff is entitled for half share in the suit schedule
properties. Feeling aggrieved by the same, the defendants
have filed this Regular Second Appeal.
9. I have heard Sri Narendra M. Reddy, learned
counsel appearing on behalf of Sri Manvendra Reddy,
learned counsel appearing for appellant No.2 and
Sri Sanganabasava B. Patil, learned counsel appearing for
the respondent.
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10. Sri Narendra M. Reddy, learned counsel
appearing on behalf of learned counsel for the appellants
contended that, the First Appellate Court erred in
interfering with the judgment and decree passed by the
Trial Court while awarding share to an extent of half share
to the plaintiff. He further submitted that, the adoption
made on 10.11.2006 by defendant No.1 taking adoption of
defendant No.2 has been proved before the Trial Court and
therefore, the First Appellate Court ought not to have
modified the shares and accordingly sought for
interference of this Court.
11. Per contra, Sri Sanganabasava B. Patil, learned
counsel appearing for the respondent sought to justify the
share allotted to the plaintiff by the First Appellate Court
and he further submitted that the suit was filed on
09.05.2006 and adoption was taken place on 10.11.2006
and therefore, modification of the share by the First
Appellate Court is just and proper.
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12. This Court, vide order dated 22.03.2013,
admitted the appeal to examine the questions of law as
indicated in the memorandum of appeal. Paragraph of 12
of the memorandum of appeal reads as under:
"(i) Whether the Courts below were justified in
holding that the daughter/plaintiff is entitled to
claim a share in the ancestral property as
co-parcener though she has married in the year
1976 i.e. prior to the coming into force of the
amendment Act 29 of 2005 to the Hindu Succession
Act, 1956?
(ii) Whether the Court below is justified in holding
that any person born or adopted in the family after
the institution of the suit for partition will not affect
the shares of the other co-parceners?
(iii) Whether the adoption of a son in the family
will amount to divesting the other co-parceners of
their share in the joint family properties?
(iv) Whether the lower Appellate Court is justified
in granting half share in favour of the plaintiff
without considering Section 12 of Hindu Adoption
and Maintenance Act, 1956, rightly?
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(v) Whether the lower Appellate Court is justified
in modifying the judgment and decree passed by
the trial Court?"
13. In the light of the submission made by the
learned counsel appearing for the parties and on perusal
of the original records, it is not in dispute that the plaintiff
is the daughter of defendant No.1 and defendant No.2 is
the adopted son of defendant No.1. The adoption of
defendant No.2 was taken place on 10.11.2006 and in this
regard, the additional issue has been answered
affirmatively in favour of the defendants by the Trial
Court. Taking into consideration the fact that defendant
No.1 had taken defendant No.2 in adoption on 10.11.2006
from his natural father - Ashok and the document was
registered in the Sub Registrar Office, Indi (Ex.D4), I am
of the view that the judgment and decree passed by the
Trial Court is just and proper and the same has been
erroneously interfered with by the First Appellate Court.
14. It is needless say that, though the suit was filed
on 09.05.2006 and thereafter adoption took place on
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10.11.2006, however, there is no impediment for the
adoptive parents to accept the child in adoption during
their life time. In that view of the matter, the modification
of share by the First Appellate Court is incorrect and
therefore, the substantial question of law refers to above
favours the defendants and accordingly, I am of the view
that that First Appellate Court has not property
re-appreciated the material on record in terms of the
judgment rendered by the Hon'ble Apex Court in the case
of Santosh Hazari vs. Purushottam Tiwari
(deceased) by LRS. reported in (2001) 3 SCC 179 and
therefore, I am of the view that, the appellant has made
out a case for interference in this appeal. In the result, I
pass the following:
ORDER
i. Appeal is allowed.
ii. The judgment and decree dated 22.09.2012 in
R.A. No.159/2011 on the file of I Addl. District
Judge, Bijapur is set aside. Consequently, the
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judgment and decree dated 17.09.2011 in O.S
No.218/2007 on the file of Senior Civil Judge,
Indi is hereby confirmed.
Sd/-
JUDGE
LG
