VIJAYALAKSHMAMMA Vs. B T SHANKAR

JUDGEMENT

(1.) The appellants (defendants) have filed the above appeal against the judgment and decree dated 29-5-1998 of a Division Bench of the Karnataka High Court in R.F.A. No. 14 of 1989 partly allowing their appeal but in other respects affirming the judgment and decree dated 7-10-1988 of the Civil Judge, Madhugiri, in Original Suit No. 83 of 1987, decreeing the suit for partition and separate possession, as prayed for.

(2.) The case of the respondent-plaintiff is that he has been adopted on 22-6-1970 as per the customs prevalent in the community by Sharadamma, wife of one A.T. Nanjappa Rao, who died in the year 1968 leaving behind him the suit schedule properties and also two widows, Smt. Sharadamma, the first wife, and Smt. Neelamma, the second wife. It was urged for the plaintiff that since late Nanjappa Rao had no issues through his wives, named above, the plaintiff, the son of Nanjappa Rao's elder brother, came to be adopted by both the widows and the factum of adoption was also evidenced by an Adoption Deed written on the same day and, therefore, he became the absolute owner of the suit schedule properties. The adoption so made was claimed to have been acted upon by entering the name of the plaintiff in the revenue records as a son of late Nanjappa Rao and that he had been managing all the properties thereafter. Sharadamma, the senior widow, died on 25-5-1984 after prolonged illness. Since disputes arose between the plaintiff and Sharadamma on one hand and the junior widow, Neelamma, on the other hand, the junior widow in collusion with another brother of Nanjappa Rao by name B.S. Krishnaoji Rao and his wife started giving trouble to the plaintiff by projecting a claim of adoption of their daughter by name Vijayalakshmamma in the year 1970 when she was nine years old but reduced into writing and affirmed under a registered deed dated 26-3-1984, and further said to be fortified by a Will dated 28-3-1984 jointly claimed to have been executed by late Sharadamma and Neelamma. After asserting a claim for partition of his share of the properties by issuing a notice preceding the filing of the suit, the respondent filed Original Suit No. 83/87 praying for a decree for declaration that he is the only adopted son of late Nanjappa Rao and for partition of his 3/4th share in the suit schedule properties by metes and bounds and for delivery of separate possession of his share and for future mesne profits from the date of suit till the date of delivery of separate possession to be determined under Order 20, Rule 12 of the CPC. The stand of the plaintiff also was that after the death of Sharadamma, the Appellants-defendants herein with the help of their men were able to dispossess the plaintiff from some of the properties necessitating the suit claim as noticed above.

(3.) The junior widow of late Nanjappa Rao was impleaded as the second defendant and the proclaimed adopted daughter Vijayalakshmamma was impleaded as the first defendant to the suit. The defendants filed a common written statement disputing the facts averred as well as claims made by the plaintiff by contending that there was no adoption of the plaintiff by Sharadamma as claimed, that the unregistered deed of adoption was a fabricated one and no rights can be claimed on the basis of such a document. The further stand was that the adoption of the first defendant as evidenced by the registered document dated 26-3-1984 (Exb. D. 2) and the Will dated 28-3-1984 (Exb. D. 1) fortified the claim of adoption projected by the defendants and at no point of time the plaintiff was the owner of the properties in question. As an alternate plea, it was projected that in any event the second defen-dant-junior widow of late Nanjappa Rao, having not either accorded her consent or participated in the so-called adoption of the plaintiff by Sharadamma, the senior widow, the adoption of the plaintiff, if at all, could be for Sharadamma only and not for or the estate of her husband, late A.T. Nanjappa Rao, and that no adoption could have been properly or legally made of the plaintiff without the consent of both the widows of late Nanjappa Rao.