TAYAMMA AND OTHERS Vs. TAMMANNAPPA AND OTHERS

JUDGEMENT

(1.) THE appeal filed against the judgment and decree of the Principal Civil Judge, Senior Division, Bijapur in Original Suit No. 51 of 1988.

(2.) THE appellants are the Plaintiffs in the suit filed for possession of the suit schedule properties from the Defendants with mesne profits. The Respondents are the Defendants. The Plaintiffs 1 to 6 and the third Defendant are the sisters and daughters of one late Hanumappa. The first Defendant is the adopted son of Hanumappa, second Defendant is the natural father of the first Defendant and the third Defendant is the natural mother of the first Defendant in the sense that Hanumappa took his grand son born to the third Defendant -his daughter in adoption on 26.7.1974. The said fact is not in dispute. According to Plaintiffs immediately after the adoption, their father executed a will bequeathing all his properties in favour of the first Defendant his adopted son. The Plaintiffs objected the bequest ignoring their interest. Therefore, Hanumappa executed a gift deed in favour of the first Defendant bequeathing the land Sy. No. 290/2, measuring 14 acres 13 guntas situate in Bidari village and also a house property bearing VPC No. 50 situate in Bidari village under registered gift deed No. 1261 dated 13.8.1974. On the same day, a settlement deed at Ex.P -1 is executed whereunder the suit properties along with R.S. No. 137/3 measuring 7 acres 21 guntas was settled in favour of the Plaintiffs with a direction that they should inherit the properties under the settlement deed after his demise. Hanumappa died on 1.12.1977. There was dispute between the parties relating to mutation of entries. In respect of the suit schedule lands, the mutation entry was made by the revenue authorities in favour of the first Defendant. Being aggrieved by the stand taken by the Defendants, the suit came to be filed for possession and mesne profits.

(3.) ON going through evidence and the reasons given by the trial Court, I find that the trial Court has discussed and considered the legal propositions which are totally inapplicable to the facts of the case. In the first place, the settlement deed Ex.P -1 and the gift deed executed by Hanumappa contains recitals to the effect that the properties dealt under the documents are the self acquired properties of Hanumappa and there is no impediment for Hanumappa to dispose of the properties in the manner done under Ex.P -1 in favour of the first Respondent. Assuming for arguments sake that the properties are the joint family properties, still the view taken by the trial Court does not hold water. In view of the provisions contained in Section 12 of the Hindu Adoptions and Maintenance Act of 1956, by virtue of an adoption, the adopted child does not acquire any rights in the properties of the adoptive father ipso facto and the adoption has no effect of divesting the right in the properties already vested in any person prior to the adoption. In the instant case, the properties were already vested in Hanumappa since he was sole surviving male heir in the family even in the ancestral properties the first Respondent as adopted son could not have any joint rights in the properties by virtue of adoption only. In the event of the death of Hanumappa without any testament, the first Respondent would have been entitled to succession as per the Hindu Succession Act at any rate by virtue of adoption, the first Respondent had not acquired any joint rights in the properties. Therefore, the question of first Respondent assailing the settlement as per Ex.P -1 does not arise. The view taken by the trial Court that Hanumappa had no right to settle the properties in favour of Plaintiffs under Ex.P -1 is untenable and liable to be set aside. The further legal surmises entertained by the trial Court that there is no relief of partition sought by the Plaintiffs is also untenable. On the basis of the settlement deed, the Plaintiffs would be entitled to inherit the properties and entitled to possession. The question of seeking declaratory relief does not arise in a suit for possession based on title, incidentally the question of title also can be considered. Hence, I find that the judgment and decree of the trial Court has to be set aside and the suit of the Plaintiff to be allowed with costs as prayed for and I direct a separate enquiry for mesne profits. Accordingly appeal allowed with costs.