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 possession of the suit property and for a declaration that registered adoption deed dated 9.2.1971 is null and void and for other companysequential reliefs.
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 and three daughters namely Smt.
Alternatively, it was submitted that as defendant number1 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.
The first appellate Court had held that defendant number1, who had been adopted on 9th February, 1971 would get 1/4th share of his adoptive mothers property, whereas the plaintiff would get number only 1/16th share of the property, but also 1/64th share of the property of Smt.
Sharnappa and three parts had been inherited by his three daughters, named hereinabove.
As the 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 had one adopted son and three daughters and therefore, the plaintiff would, at the first instance, get 1/4th share of Smt.
Kyadigamma defendant No.
Sharnappa and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant number1 would get 1/16th share of the suit property.
One part was inherited by his widow Smt.
Kydigamma, Smt.
So far as inheritance of the suit property in favour of the plaintiff is companycerned, in our opinion, the first appellate Court was companyrect to the effect that the plaintiff would inherit number only property of his mother, Smt.
At the time when Shri Sharnappa died in 1957, defendant number1 was number in the picture as he was adopted by Smt.
Sharnappa was having 1/4th share in the entire property, which she had inherited from her husband late Shri Sharnappa.
It had been submitted that Smt.
Sharnappa and therefore, defendant number1, the present Appellant, was trying to usurp the entire suit property by denying the share of the plaintiff.
No partition was effected among the four sharers and in the companyrse of time, three daughters died during the life of their mother Smt.
Upon death of Smt.
Sharnappa and further 1/64th share from the property of Smt.
Nagamma, would get 1/64th share from the property of his grandmother Smt.
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.
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.
Sharnappa.
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, defendant number1 had performed all religious ceremonies including the rituals of making payment to other defendants and other female members upon death of Smt.
The first appellate Court, vide judgment and decree dated 31st August, 2008 dismissed the appeal filed by defendant number1 and partly allowed the appeal filed by the plaintiff by giving the plaintiff and his sisters 1/4th share in their mothers 1/4th share in all the suit properties as granted by the trial Court and in addition thereto their mothers 1/4th share in the share of Smt.
Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would number be disturbed by virtue of subsequent adoption of defendant number1.
It was further submitted that defendant number1 married defendant number2, daughter of Smt.
For the purpose of companyvenience, the parties to the litigation have been referred to as they were before the trial Court.
Nagamma along with his three sisters, but he would also have share in the properties of his grandmother, late Smt.
Nagamma, had received 1/4th share of Smt.
Sharnappa.
Sharnappa, leaving behind their respective undivided share in the suit properties, which devolved upon their respective heirs.
Sharnappa, but, in fact, there was numberexecution of any adoption deed and requisite ceremony for adoption of defendant number1 had also number been performed and therefore, defendant number1 had numberright in the property.
Sharnappa.
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.
On the other hand, it had been submitted on behalf of defendant number1 that the plaintiff was number in possession of the suit properties along with other defendants as a member of an undivided family.
Sarojamma devolved upon defendant number 3 and defendant number.
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 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.
Sharnappa.
Sharnappa.
Sharnappa on 9th February, 1971.
On the demise of Shri Sharnappa Gaded in the year 1957, suit properties had devolved upon his wife Smt.
The trial Court by a judgment and decree dated 9th February, 2007, in view of the registered adoption deed and upon companysidering other evidence, came to the companyclusion that defendant number1 was an adopted son of Smt.
Sharnappa grandmother as 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.
It had been further submitted that as defendant number1 was an adopted son of 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.
Being aggrieved by the judgment and decree of the trial Court, defendant number1 preferred First Appeal No 30/2007 before the Fast Track Court, Yadgir hereinafter referred to as the first appellate Court .
Nagamma and thus the plaintiff was entitled to 1/16th share in the suit property.
The property had also been mutated in the name of defendant number1 and the said mutation had also been challenged.
Nagamma, being one of the daughters had received 1/4th share and the plaintiff being one of the four children of late Smt.
Being aggrieved by the judgment of the first appellate Court, defendant number1 filed Regular Second Appeal number7310 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.
Sharnappa Shri Sharnappa Saheb.
5 and Smt.
Nagamma and grandson of late Shri Sharnappa Gaded, filed Civil Suit OS No.
It was further companytended that defendant No.1, the present Appellant, claimed to have been adopted by late Smt.
It had been submitted that as late Smt.
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.
Nagamma and 1/64th share upon death of Smt.
The plaintiff also preferred an appeal companytending that in addition to 1/16th share, he was also entitled to a further share in 1/4th share of his deceased grandmother, Smt.
4 , Smt.
Nagamma and Smt.
Thus, the plaintiff was entitled to 5/64th share in the suit property.
Likewise, it was companytended that undivided 1/4th share of Smt.
Sharnappa had also number prepared any Will and as she had died intestate, her property would be divided among her adopted son i.e. defendant number1 and heirs of her three daughters, who had predeceased Smt.
Sarojamma.
Sharnappa had numbermale issue, she had adopted defendant number1, who had married defendant number2.
Nagamma defendant No.
Sarojamma defendant No.
Sharnappa and the aforestated three daughters in equal shares and the female heirs became absolute owners of their respective shares.
The plaintiff had further pleaded that he was a member of the undivided family and after death of his grandmother Smt.
Sharnappa had adopted defendant number1 by virtue of adoption deed dated 9th February, 1971, which had been duly registered and from the date of adoption, defendant number1 had started living with his adoptive mother and had also enjoyed the suit property as an owner thereof.
Sharnappa in all the suit properties and came to the companyclusion that the trial Court did number companysider the fact that Smt.
Sharnappa for the reason that Smt.
In the circumstances, upon his death his properties were inherited by his widow and three daughters.
Sharnappa.
Sharnappa and the plaintiff being one of the four heirs of late Smt.
As stated hereinabove, the plaintiff would be getting 1/16th share in the property of Smt.
Sharnappa had died intestate.
Kyadigamma in suit properties devolved upon her only daughter named Smt.
In the instant case, there was numbercoparcenary, as Late Shri Sharnappa was the sole male member in the family.
As originally Smt.
Nagamma, the property which she had inherited from her mother Smt.
Channama defendant number 2, who is the wife of the present appellant and undivided share of 1/4th of Smt.
7 to 9.
Nagamma, her undivided share devolved upon the plaintiff along with his three sisters, being defendant number.4, 5 and 6.
One of the daughters being Nagamma, heirs of Nagamma would inherit 1/4th share of property of Smt.
ANIL R. DAVE, J. The appellant original defendant number1 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.
