VIRAYYA Vs. SHIDDAYYA IRAYYA GHANTHIMATH DEAD

JUDGEMENT

(1.) appellant-plaintiff virayya filed o.s. No. 10 of 1978 before the civil judge, gadag, for partition and possession of his 1/2 share in the suit properties. The suit was dismissed on 6-8-1979. The plaintiff challenged this judgment in r.a. No. 41 of 1979 on the file of the additional district judge, dharwad. This appeal also came to be dismissed on 31-7-1982. Aggrieved by the said judgment, the plaintiff has filed this second appeal.

(2.) the following genealogy which is not disputed shows the relationship of the parties: shiddalingayya irayya (died in 1957) nagayya (died in 1917) -----------------------------------------------1 siddaya (deft. 1) virupaxayya (deft. 2) i i i i basayya nagayya sangayya veerayya (deft. 3) (deft. 4) (deft. 5) (plaintiff) as stated, the appellant-plaintiff filed the suit for partition and separate possession of his 1/2 share alleging that basawa, widow of nagayya took him in adoption on 5-5-1973. Defendant No. 2 is the natural father of the plaintiff whereas dcfendants-3 to 5 are his natural brothers. Siddayya, defendant-1 is the contesting defendant. He denied the adoption and contended that after the death of irayya, there has been a partition between defendants 1 and 2. The fact that the appellant was adopted on 5-5-1973 by basawa, widow of nagayya who died in 1917, is not disputed. The courts below have, on facts, held that there has been a partition between siddayya and virupaxayya in the year 1959. These are all questions of fact not liable to be disturbed in this second appeal.

(3.) Sri k.i. bhatta, learned counsel for the appellant, points out that the right and title of late nagayya who died in the year 1917 had vested with his brother virupaxayya by survivorship and since there has been no partition between nagayya and irayya, the plaintiff should be held to have 1/2 share in the entire joint family property which his adoptive father nagayya would have got in a partition. To substantiate his contention, he relied on a decision in the case of vasant v dattu, AIR 1987 SC 398 wherein it is stated that the introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it would not involve any question of divesting any person of any estate vested in him and when a widow of a deceased coparcener adopts a child, Section 12 proviso (c) does not preculde the adopted child from claiming his share in the joint family properties for if a share is given to the adopted child there is no question of "divesting" any person of any estate which vested in him before adoption.