Karnataka High Court
Mallappa Teggi vs Smt Shantawwa on 11 November, 2024
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RSA No. 22 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 22 OF 2008 (PAR)
BETWEEN:
1. SRI. MALLAPPA S/O. NINGAPPA TEGGI,
SINCE DECEASED BY HIS LRS.
1A. SMT. TAYAWWA W/O. MALLAPPA TEGGI,
AGED ABOUT 70 YEARS, OCC. HOUSE WORK,
R/AT. KATARAKI, TQ. BILAGI, DIST. BAGALKOT.
1B. SMT. GIREWWA W/O. MUDAKANNA KAVATEKAL,
AGED ABOUT 44 YEARS, OCC. HOUSE WORK,
R/AT. SULIKERI, TQ. ILKAL, DIST. BAGALKOT.
1C. SMT. BHARATI W/O. SHIVAKUMAR SHINGARATI,
AGED ABOUT 37 YEARS, OCC. HOUSE WORK,
R/AT. KATARAKI, TQ. BILAGI, DIST. BAGALKOT.
Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL 1D. SRI. NINGAPPA S/O. MALLAPPA TEGGI,
PATTIHAL Date:
2024.11.26
10:56:53
AGED ABOUT 35 YEARS, OCC. PRIVATE SERVICE,
+0530
R/AT. SAIDAPUR, SAMEERWADI,
TQ. BANAHATTI- RABAKAVI, DIST. BAGALKOT.
... APPELLANTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SMT. SHANTAWWA
W/O. YELAGURDAPPA ANKALAGI,
AGED ABOUT 68 YEARS,
R/AT. HIRE-ASANGI, TQ. BASAVAN BAGEWADI,
DIST. VIJAYAPUR.
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RSA No. 22 of 2008
2. SMT. RUKMAWWA
W/O. NINGAPPA KORADDI,
DIED HER LRS ARE ALREADY ON RECORD AS
R1, R3 AND R4.
3. SRI. LAXMAN S/O. NINGAPPA KORADDI,
AGED ABOUT 90 YEARS,
R/AT. GANI, TQ. JAMKHANDI,
DIST. BAGALKOT.
4. SRI. SOMANNA S/O. NINGAPPA KORADDI,
AGED ABOUT 55 YEARS,
R/AT. GANI, TQ. JAMKHANDI,
DIST. BAGALKOT.
5. SMT. MEENAXI W/O. RAJENDRA NYAMAGOUDA,
AGED ABOUT 45 YEARS,
OCC. HOUSE WORK, R/AT. KONNUR,
TQ. JAMKHANDI, DIST. BAGALKOT.
6. SRI. BASAVARAJ MALLAPPA TEGGI
AGED ABOUT 48 YEARS, OCC. AGRICULTURE,
R/AT. KOLUR VILLAGE, TQ. BILAGI,
DIST. BAGALKOTE.
R6 IS IMPLEADED AND (AMENDMENT CARRIED OUT AS
PER COURT ORDER DATED 14.02.2024)
... RESPONDENTS
(BY SRI. RAMESH I ZIRALI AND SRI. SHIVAARAJ BALLOLI,
ADVOCATE FOR R3 AND R4;
SMT. SANJANA S MUDHOL, ADVOCATE FOR
SRI. SHIVARAJ P MUDHOL, ADVOCATE FOR R5;
R1 SERVICE HELD SUFFICIENT;
R2 DECEASED (R1, R3, R4 ARE LRS OF DECEASED R2)
R6 SERVICE HELD SUFFICIENT)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 19.09.2007 PASSED IN RA.NO.35/2006 ON THE
FILE OF THE PRESIDING OFFICER FAST TRACK COURT, JAMKHANDI,
ALLOWING THE APPEAL SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 09.08.2006 PASSED IN OS.NO.02/1996 ON THE FILE
OF THE PRL.CIVIL JUDGE (SR.DN.) JMAKHANDI.
THIS APPEAL, COMING ON FOR DICTATION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 22 of 2008
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
Defendant No.2 is before this Court, in this Regular
Second Appeal, assailing the legality and correctness of the
judgment and decree, dated 19.09.2017, passed in R.A.
No.35/2006 on the file of the Fast Track Court, Jamkhandi
(for short "First Appellate Court") modifying the judgment
and decree dated 09.08.2006, passed in O.S. No.2/1996
on the file of the Prl. Civil Judge (Sr.Dn.), Jamkhandi (for
short "trial Court").
2. For the sake of convenience, the parties herein
are referred to as per their rank before the trial Court.
3. Brief facts of the case are that,
Suit properties are described as under:
Sl. Asstt. Standing in
Village Taluka R.S. No. A.G.
No. Rs. Ps. the name of
1 Konnur Jamkhandi 311/2A/2 4.00 7.56 Defts. 3 & 4
2 " " 311/2A/1 8.00 15.18 Defts. 3, 4 & 5
3 Gani " 102/1/1A 3.13 8.75 Deft. No.2
4 " " 103/1 5.00 7.35 Deft. No.4
5 " " 103/2 4.33 7.00 Deft. No.3
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4. Suit for partition and separate possession
seeking 1/5th share in the suit properties, plaint avers that:
(i) The plaintiff and defendants constitute a joint Hindu
Family. Plaintiff being the daughter of the deceased
Ningappa has got equal share as that of a son under
amended Sec 6 of Hindu Succession Act, 1956;
(ii) There is no partition in the suit schedule properties
though record of rights indicate the names of different
defendants to lands shown in the schedule;
5. The plaintiff describes the relationship of the
parties as under:
NINGAPPA
=WIFE RUKMAVVA (DEFT.1)
MALLAPPA SHANTAVVA LAXMAN SOMANNA
(DEFT.2) (PLTFF.) (DEFT.3) (DEFT.4)
6. Averments in the written statement
(i) One Bhimappa Ramappa Koraddi of Belgali in Mudhol
taluka died issueless and after his death his widow
Girewwa adopted Ningappa S/o. Somappa Teggi of
Gani on 01.10.1949 as per the customs of the family
and community. At the time of adoption, Ningappa
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had a wife by name Smt. Rukmawwa who is
defendant No.1 and a son by name Mallappa, who is
defendant No.2.
(ii) Mallappa (defendant No.2) was aged about three
years at the time of adoption, defendant Nos.3, 4 and
plaintiff were born after the adoption of Ningappa.
(iii) After the adoption of Ningappa, Bhimappa Koraddi
filed suit in O.S. No.58/1952 for partition in the
properties of the adopted family before the concerned
Court and in the said suit, half share in R.S. No.411/1
and other properties of Belgali was allotted to
Ningappa. Pursuant to which the said Ningappa sold
the property and purchased R.S. No.311 measuring 16
acres of Konnur and further on R.S. No.311,he sold
the land measuring 4 guntas to one Maningwwa
Mavingol of Gani village.
(iv) R.S. Nos.102 and 103 of Gani village (i.e., item Nos.3
to 5) belong to the genetic family of late Ningappa. On
adoption he severs his tie with the genetic family and
is born in adoptive family and only defendant No.2 -
Mallappa would inherit the genetic family property and
the plaintiff and other defendants have no right or
share in the genetic family property of Ningappa.
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(v) The plaintiff, defendant Nos.3 and 4 would inherit the
property of their father from the adoptive family and
would not inherit the property which was in the
adoptive family.
7. The trial Court based on the pleadings, framed
necessary issues for its consideration, which reads as
under:
"1. Whether plaintiff proves correctness of the
genealogy given in the plaint.
2. Whether plaintiff proves that suit schedule
properties are the ancestral joint family of
Ningappa?
3. Whether plaintiff proves that she is in joint
possession and enjoyment of the suit
properties with the defendants?
4. Whether plaintiff proves that the sale deed in
favour of defendant No.5 is not binding on
plaintiff's share?
5. Whether plaintiff is entitled to the share in the
suit properties? If so what is her share?
6. Whether defendants prove that suit is barred
by limitation under Section 27 of Limitation
Act?
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7. Whether defendants prove that without set
asiding earlier partition suit is not
maintainable?
8. Whether the suit is not properly valued and
Court fee paid is not correct>
9. Whether the suit is bad for non-joinder of
necessary parties as stated in para-17 of the
written statement?
10. Whether the plaintiff is entitled to the relief
sought for?
11. What judgment or decree?"
8. In order to substantiate their claim, the plaintiff
examined himself as PW1 and marked the documents at
Exs.P1 to P9. On the other hand, defendant Nos.2, 4 and
power of attorney holder of defendant No.5 have been
examined themselves ad DW1 to DW3 and got marked the
documents at Exs.D1 to D15.
9. The trial Court based on the pleadings, oral and
documentary evidence held that the plaintiff is entitled for
share in item Nos.1 and 2 belonging to the adoptive family
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and would not be entitled for share in item Nos.3 to 5
belonging to the genetic family and by the judgment and
decree the trial Court partly decreed the suit holding 1/25th
share in R.S. No.311/2A/2 (item No.1) measuring 4 acres
and R.S. No.311/2A/1 (item No.2) measuring 8 acres in
the suit schedule properties of Konnur village in Jamkhandi
taluka.
10. Feeling aggrieved, the plaintiff preferred appeal
before the First Appellate Court. The First Appellate Court
modified the judgment and decree of the trial Court and
held that the plaintiff is entitled for 1/6th share in item
Nos.1 and 2 and defendant Nos.1, 3 and 4 are entitled for
5/16th share each, further, sale of 4 acres out of 8 acres in
item No.1 in favour of defendant No.5 to be binding on the
share of defendant Nos.3 and 4 and further held, that
deceased Ningappa had half share in item Nos.3 to 5 and
defendant No.2 is entitled for half share in item Nos.3 to 5
and house property, plaintiff, defendant Nos.3 and 4 are
entitled for equal share in the half share belonging to the
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deceased Ningappa in the land and house property of Gani
village.
11. Feeling aggrieved, defendant No.2 is before this
Court in this Regular Second Appeal.
12. This Court while admitting the appeal on
27.10.2009 framed the following substantial questions of
law:
"1) Whether the lower appellate court was
justified in decreeing the suit in respect of the
properties to which there is already decree of
the court in favour of the appellant?
2) Whether the court below was justified in
granting a share in favour of the plaintiff in
the genitive family of the father?
3) Whether the lower appellate court was
justified in holding that even after adoption
the person going in adoption continue to
inherit the property from the genitive family?
4) Whether the lower appellate court was
justified in arriving to the conclusion that
there are no evidence to show the partition,
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contrary to the partition decree being
produced before the court below?"
13. Learned counsel appearing for the appellant and
the learned counsel appearing for the respondents have
been heard on the substantial questions of law framed by
this Court.
14. Learned counsel appearing for the appellant
would urge the following grounds:
(i) That the deceased Ningappa had severed his
relationship with the genetic family on his being
adopted and the First Appellate Court granting share
to the plaintiff, defendant Nos.3 and 4 who were born
after the adoption of Ningappa in the genetic family of
the deceased Ningappa was erroneous as Plaintiff,
defendant Nos.3 and 4 were born after the adoption of
Ningappa.
(ii) The First Appellate Court failed to consider that on
adoption, Ningappa severed his relationship with the
genetic family and the children born after the adoption
could not inherit the property from the genetic family.
In support of his contention, learned counsel relies upon
the decision of the Apex Court in the case of Kalindi
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Damodar Garde (D) By L.Rs. Vs. Manohar Laxman
Kulkarni and Ors.1 (for short "Kalindi Damodar
Garde") and the decision of the Division Bench of this
Court in the case of Siddanagouda and others Vs.
Kashibai2 (for short "Siddanagouda")
15. Plaintiff/respondent No.1 though served with
the notice have chosen to remain absent. Respondent No 5
purchaser of item no 2 from defendant Nos.3 and 4
submits that the Courts below have held that defendant
No.5 is the bonafide purchaser of item No.2 of the schedule
property from defendant Nos.3 and 4 and the sale of 4
acres out of 8 acres in R.S. N o.311/2A/1 of Konnur village
was directed to be allotted to the share of defendant Nos.3
and 4 and the said finding has not been challenged by
defendant Nos.3 and 4 by filing separate appeal, hence
findings recorded by courts below that respondent no 5 is a
bonafide purchaser needs to be affirmed.
(2020) 4 SCC 335
ILR 2019 KAR 843
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16. Before answering the substantial questions law
Nos.2 and 4, this Court deems it appropriate to answer
substantial question of law No.3, which reads as under:
"3) Whether the lower appellate court was
justified in holding that even after adoption
the person going in adoption continue to
inherit the property from the genitive family?"
17. The facts which are undisputed are as under:
(i) Defendant No.2 - Mallappa was born to Ningappa
prior to Ningappa's adoption by Girewwa on
01.10.1949;
(ii) Plaintiff, defendant Nos.3 and 4 are born to Ningappa
after he went in adoption on 01.10.1949;
(iii) Item Nos.1 and 2 properties are the properties of the
adopted family of Ningappa.
(iv) Item Nos.3 to 5 properties are the properties
belonging to the genetic family of Ningappa.
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18. For better understanding the genealogy tree is
culled out as under, which is not disputed by either of the
parties.
RAMAPPA KORADDI OF BELAGALI
(DIED LONG BACK) (PROPOSITUS)
BHIMAPPA PANDAPPA
(DIED) (DIED)
GIREWWA = RAMAPPA
(DEAD)
NINGAPPA (ADOPTED SON)
(ADOPTED ON 01.10.1949)
(SON OF SOMAPPA TEGGI)
(DIED ON 20.05.78)
RUKMAVVA =
MALLAPPA
(BORN BEFORE ADOPTION LAXMAN SOMAPPA SHANTAWWA
OF HIS FATHER)(DEFT.2) (Deft.3) (Deft.4) (Pltf.)
19. In light of the undisputed fact that plaintiff,
defendant Nos.3 and 4 were born after the date of
adoption and Mallappa was born prior to the date of
adoption. The trial Court arrived at a conclusion that
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plaintiff would be entitled to share only in the properties of
the adoptive family i.e., item Nos.1 and 2.
20. Section 12 of the Hindu Adoption and
Maintenance Act, 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;
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(c) the adopted child shall not divest any
person of any estate which vested in him or her
before the adoption."
21. The children born before the person is adopted
are entitled to inherit their adoptive father's property. This
is because adoption transfers the adopted child into the
adopted family and gives him the same right as a natural
born child in the family. Once an adoption takes place, the
adopted child / person severs his ties from the family of
genetic and seems to be a coparcener in the family of his
birth from the time of adoption and becomes one with his
adoptive family immediately. This would however not be a
case with regard to the son of the adoptive born before
adoption and his pre adopted son continues to be the
grandson of his grandfather and his right to partition in
that branch is in no way effected, and even if a married
person having children is taken in adoption, such children
are not transplanted to the adopted family of their genetic
family. In other words, the adopted son though seems to
be a coparcener in the family of the birth from the time of
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his adoption and becomes one with the adopted family
immediately. The question that is before this Court is that
the plaintiff, defendant Nos.3 and 4 the children born after
the adoption and what would be the right of those children
and whether they could be entitled for share in the genetic
family of the deceased father Ningappa. The deceased
Ningappa having been given in adoption and having
severed his status from the genetic family, the children
born to him after adoption would not be entitled for share
in the genetic family property.
22. The Apex Court in the case of Kalindi
Damodar Garde (supra) has held at paragraph No.21 as
under:
"21. In view of the provisions of the Act
which do not make any distinction between the son
born to a father prior or after adoption of his father
and that there is no provision which bars the natural
born son to inherit the property of his natural father,
therefore, the High Court has rightly upheld the
rights of the sons of Laxman. In fact, in the Full
Bench judgment of the Bombay High Court
in Martand Jiwajee Patil [Martand Jiwajee
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Patil v. Narayan Krishna Gumast-Patil, 1939 SCC
OnLine Bom 7 : AIR 1939 Bom 305] , it has been
held that the natural father retains the right to give
in adoption his son born before his own adoption.
Therefore, if he has a right to give his son in
adoption, such son has a right to inherit property by
virtue of being an agnate. There was a full blood
relationship between the three sons and the
daughter who was born after adoption. All the
children of Laxman are entitled to inherit the
property of their natural father and mother in
accordance with the provisions of the Act as
succession has opened after the death of Laxman in
1987 and subsequently the mother in the year
1992."
23. The Apex Court held that the Act does not make
any distinction between son born to the father prior or
after adoption of his father and there is no provision which
pass the natural son to inherit the property of his natural
father. The Division Bench of this Court in the case of
Siddanagouda (Supra) at paragraph No.33 held as under:
"33. In the case of Vittal Rao and Another Vs.
Mallappa and another, in RSA No.7379/2011 [DD
26.11.2012], this Court has observed that an
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adoption under the Mitakshara law has the effect of
transplanting the adopted boy from his natural
family in to the family of his adoptive father. He
ceases to be a coparcener in the family of his birth
from the time of adoption and becomes one with his
adoptive family immediately. This is however not so
with regard to the sons of the adoptee born before
the adoption. His pre-adoption son continues to be
the grand son of his grand father and his right to
partition in that branch is in no way affected. Even if
a married person having children is taken in
adoption, such children are not transplanted to the
adopted family of their genitive father. In other
words, the adopted son ceases to be a coparcener in
the family of his birth from the time of his adoption
and becomes one with his adoptive family
immediately. However, children born before the
adoption are not transplanted to the adopted family
of his father. The transplantation is restricted and
confined to the adoptee and his wife (Ardhangi ) and
does not extend to the children born before such
adoption. Such children born prior to adoption do
not loose their gotra and right of inheritance in the
family of their birth and no gotra and right of
inheritance in the family to which their father has
been adopted, is acquired."
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24. Returning to the facts narrated as above, from
the moment of adoption, late Ningappa lost his rights in
the genetic family, Ningappa severed his status and
adopted and inherited the property in the adopted family.
The children born to the adopted father i.e., Ningappa
would be entitled to inherit his property in the adopted
family and not in the genetic family as held by the trial
court. The First Appellate Court was not justified in arriving
at a conclusion that the deceased Ningappa had half share
in item Nos.3 to 5 and the plaintiff, defendant Nos.3 and 4
being entitled for equal share in the half share of deceased
Ningappa. The First Appellate Court has totally misread the
proposition of law and the right of children born after
adoption. The substantial questions of law no 3 framed by
this Court is answered in the affirmative in favour of the
appellant. In light of answering substantial question of law
No.3, the other substantial questions of law are being
answered holding that the First Appellate Court has totally
fell in error in awarding share to the children i.e., children
of Ningappa born after adoption and the plaintiff,
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defendant Nos.3 and 4 would be entitled only for share in
the adopted family i.e., item Nos.1 and 2 and not in the
genetic family. The finding that defendant No.5 is the
bonafide purchaser and the share being allotted to share of
defendant Nos.3 and 4 stands undisturbed and this Court
pass the following:
ORDER
(i) The Regular Second Appeal is hereby
allowed;
(ii) The judgment and decree of the First
Appellate court is set aside.
(iii) The judgment and decree of the trial Court
stands confirmed.
(iv) The plaintiff defendant Nos.3 and 4 are
entitled for share in item Nos. 1 and 2 of
the suit schedule property.
Sd/-
_____________________
(JUSTICE K.S.HEMALEKHA
VNP / CT:PA
LIST NO.: 2 SL NO.: 20 ykl
