SHIVASHARANAPPA S/O REVAPPA BHAKARE Vs. SANGAMESHWAR ADOPTED S/O CHANDANNA BAKARE

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of Code of Civil Procedure is by the defendants 1 to 4 in OS No 116 of 2003, on the file of Civil Judge (Sr Dn), Aland (originally numbered as OS No 378 of 2001, on the file of Addl Civil Judge (Sr Dn), Gulbarga, which had been later transferred to the court of Civil Judge (Sr Dn), At Aland and renumbered as OS No 116 of 2003), and directed against the judgment and decree dated 19-10-2005 passed in the suit, a suit for partition of joint family properties and the plaintiffs, numbering two - mother and her adopted son - together having claimed half share in the suit schedule properties and the suit having been decreed in terms of the prayer in the plaint, though some minor variations regarding the inter se sharing amongst the plaintiffs and the 19th defendant, who is the daughter of second plaintiff. For the sake of convenience, the parties will be referred to in their respective ranks in the suit.

(2.) Defendants 1 to 4, who had contested the suit and who are heirs of the brother of the husband of the second plaintiff, who had instituted the suit in her status as widow of one Chandanna Bhakare and defendants 1 to 4 being grandchildren of Revappa Bhakare - brother of Chandanna. Defendants 1 to 4 have contended that the judgment and decree passed by the trial court is not sustainable in law; that there have been errors of not only questions of law but also the manner in which evidence on record has been appreciated; that when there was basic dispute even with regard to the status of the second plaintiff to be the widow of Chandanna - a member of the joint family - and further dispute as regards the first plaintiff being the adopted son of second plaintiff and more so when the first plaintiff at the time of adoption in the year 2001, even as claimed by the plaintiffs, was much more than 15 years of age and therefore the trial court could not have accepted it as a valid adoption in the wake of the provisions of Section 10(iv) of the Hindu Adoption & Maintenance Act, 1956 [for short, the Adoption Act]; that even when the plaintiffs were not entitled to any share at all in the joint family properties of Revappa and Chandanna, the trial court decreeing the suit is a grave error in law and therefore calls for interference, appeal is to be allowed and the suit dismissed etc.

(3.) Brief facts leading to filing of the suit, as per the plaint averments, are that: One Shivalingappa, who was the propositor of the family, had one daughter Kallawa and three sons - Sidram, Revanna and Chandanna; that the said propositor Shivalingappa died in the year 1910, his first son Sidram died in the year 1940 without any issues, daughter Kallawa had been married to Mallikarjun, who had two sons and daughter Neelabai; that the said Neelabai is the second plaintiff and had been given in marriage to Chandanna, after his first wife Chandawa deserted him and married another person namely Anneppa Mudukanna and had lived separately and after the marriage of Neelabai with Chandanna, they had a daughter by name Gurubai; that her husband Chandanna died in the year 1950 or 1954; that after the death of Chandanna, Neelabai continued to reside in the family house of Bhakare family and was being taken care of her brother-in-law Revanna - elder brother of Chandanna; that Revanna also died on 26-1-1993, whereafter Revappa's son Shivasharanappa started troubling and harassing the second plaintiff Neelabai and ultimately driving her to seek shelter in her matrimonial house; that her daughter Gurubai had been given in marriage to 16th defendant Shankar - son of Kallawa; that the second plaintiff adopted the first plaintiff for continuation of the lineage etc., after observing necessary procedure in this regard; that the adoption took place on 10-6-2001 in the presence of relatives, elders in the family and a swamiji, at Nandagaon village in Tuljapur taluk of Maharashtra, the maternal home of Neelabai and thereafter in spite of the demands of plaintiffs for their legitimate share i.e. share of Chandanna in the joint family properties, defendants, particularly defendants 1 to 4, who were in the possession and vahivat of the properties did not oblige and therefore the suit was laid seeking for partition and separate possession of the plaintiffs' share in the joint family properties.