BHIMASHYA Vs. JANABI ALIAS JANAWWA
LAWS(SC)-2006-12-85
SUPREME COURT OF INDIA (FROM: KARNATAKA)
Decided on December 11,2006

BHIMASHYA Appellant
VERSUS
JANABI @ JANAWWA Respondents


Referred Judgements :-

NOBLE V. DURELL [REFERRED TO]
MAGISTRATE OF DUNBAR V. THE DUCHESS OF ROXBURGHA [REFERRED TO]
FENDER V. ST. JOHN MILDMAY [REFERRED TO]
MOOKKA KONE V. AMMAKUTTI AMMAL [REFERRED TO]
GOKAL CHAND VS. PARVIN KUMARI [REFERRED TO]
HEM SINGH VS. HARNAM SINGH [REFERRED TO]
KISHORI LAL VS. MT CHALTIBAI [REFERRED TO]
GHERULAL PARAKH VS. MAHADEODAS MAIYA [REFERRED TO]
V T S CHANDRASEKHARA MUDALIAR SINCE DECEASED AND AFTER HIM HIS LEGAL REPRESENTATIVES VS. KULANDAIVELU MUDALIAR [REFERRED TO]
AMARENDRA MAN SINGH BHRAMARBAR VS. SANATAN SINGH [REFERRED TO]





JUDGEMENT

- (1.)Leave granted.
(2.)Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Karnataka High Court dismissing the Second Appeal filed by the appellants who are defendants in the suit filed by the respondent as plaintiff. In the impugned judgment the High Court held that the stand taken by the defendants that defendant No.1 was the adopted son of one Fakirappa, was not established. However, it granted relief in respect of property at item No.3 in the schedule to the plaint, which the first Appellate Court had held to be ancestral property of Fakirappa. High Court held that the said property is the self acquired property of defendant No.1 and the plaintiff is not entitled to any share in the said property. The parties are described in the manner they were arrayed in the suit filed by the plaintiff.
(3.)The factual position, in a nutshell, is as follows:
1. The plaintiff filed the suit for partition and separate possession of her half share in the suit properties and for mesne profits averring that one Fakirappa, the propositus died on 19.3.1965. He had two wives, namely: Bhimawwa, the first wife and Basawwa, the second wife. Basawwa, died about 35 years before filing of the suit. Fakirappa had two daughters namely, Kallawwa, who was born to Bhimawwa, the first wife and Janabi, the plaintiff who was born to the second wife Basawwa. The said Kallawwa is the wife of defendant No.1 while defendants 2 and 3 are the sons of defendant No.1. It is further averred that the suit properties are the ancestral and joint family properties and since Fakirappa died leaving behind the plaintiff and the wife of the defendant No.1 and defendant Nos. 2 and 3 are the sons of the 1st defendant, after the death of Fakirappa, the plaintiff is entitled to half share in the suit schedule properties.

2. The defendant No.1 resisted the suit by filing the written statement averring that the defendant No.1 is the validly adopted son of the deceased Fakirappa. He has been wrongly described in the plaint. Fakirappa and his wife, Bhimawwa had validly adopted the defendant No.1 on 28.3.1960 by observing and performing all the necessary customary and religious ceremonies including giving and taking and they have also executed a registered adoption deed in favour of the defendant No.1. Suit house properties were not of the ownership of the deceased Fakirappa. They are the self acquired properties of defendant No.1 and the plaintiff cannot claim any share in the same. Averment made in the plaint that the plaintiff is the daughter of Fakirappa through the second wife, is not correct and the plaintiff is put to strict proof of the same. Since the death of Fakirappa, the defendants have been in exclusive possession and enjoyment of the suit properties openly and without anybody's obstruction as exclusive owners thereof. The plaintiff has been ousted from the enjoyment of the suit properties since the death of Fakirappa. The plaintiff having not taken any step towards asserting her right in respect of the suit properties is not entitled to any relief in the suit.

3. The trial Court framed 11 issues and came to hold that defendant No.1 is the adopted son of Fakirappa. The present appeal does not relate to the other issues and, therefore, we are not dealing with those issues in detail. Questioning the conclusion of the trial Court that defendant No.1 was the adopted son of Fakirappa, an appeal was filed. The First Appellate Authority held that the claim of adoption of defendant No.1 is untenable and even when there was a registered deed of adoption, the same was of no consequences and the adoption, if any, had no sanctity in the eye of law. It also held that the property described as Item No.3 was ancestral property. The defendants preferred an appeal u/s. 100 of the Code of Civil Procedure, 1908 (in short 'the CPC') questioning correctness of the First Appellate Court's conclusions. The High Court, by the impugned judgment, as noted above, granted partial relief.

4. So far as the question of adoption is concerned, it was held that appellant No.1 was married to the daughter of Fakirappa, the adoption was claimed to have been made on 28.3.1960 and the adoption deed was registered on 31.3.1960 which was at a time when The Hindu Adoption and Maintenance Act, 1956 (in short 'the Act') was in operation. The defendant No.1 was more than 15 years of age and, therefore, could not have been adopted and, therefore, his adoption, if any, cannot be recognized in law. Relief was granted in respect of Item No.3 property.

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