SIDDARAMAPPA Vs. GOURAVVA

JUDGEMENT

(1.) THIS is a defendants appeal. For the purpose of brevity, the parties are referred to as they are referred to in the suit. The facts in brief are as under :

(2.) THE case of the plaintiff is, One mallappa S/o Fakirappa Sayan alias Tali was the propositus. He died leaving behind two sons by name Basavanneppa and Sidra-mappa. Those two brothers with their father constituted an undivided Hindu family. After the death of Mallappa, the brothers effected a partition of all the joint family properties. The property which fell to the share of basavanneppa are shown in the schedule 'a' to the plaint and the property which fell to sidramappa was shown as schedule 'b' properties. The plaintiff-Smt. Gourawa is the legally wedded wife of Basavanneppa; She halls from Bannikoppa Village of Shirhatti taluk. Basavanneppa died on 29-8-1992. There were no issues out of the wed lock and, therefore, on the death of Basavanappa, the plaintiff succeeded to all his properties as a sole legal heir. Defendant No. 1 is the brother of Basavannappa, defendant No. 3 is the son of defendant No. 2. The plaintiff contended that her husband was ailing six months prior to his death, he was not in sound state of mind. Taking advantage of the said fact, the defendants 1 and 2 have created a deed of adoption and got it registered under which the third defendant is shown to be given in adoption to the deceased husband of the plaintiff. Basavannappa never consulted her nor asked her consent or concurrence to the adoption. By impersonation by taking some other person as Basavannappa the deed had been executed and registered. As the said adoption is contrary to the Hindu adoption and Maintenance Act, 1956, it is not valid and legal. Subsequently, by way of an amendment the plaintiff also pleaded that her husband died intestate and was not in sound and disposing state of mind prior to six months of his death and the Will set up by the defendants is a forged and fabricated one and she also denied execution and attestation of the alleged Will set up by the defendants. As the defendants were threatening the plaintiff with her peaceful possession and enjoyment of the 'a' schedule properties, she was constrained to approach the court below for the relief of declaration, for cancellation of the adoption deed and for cancelling the illegal entries made by the revenue authorities acting on the adoption and the alleged Will and she also prayed for restraining the defendants from obstructing the peaceful enjoyment of the plaintiff over the suit schedule 'a' property.

(3.) THE defendants contested the said claim. Defendants 1 to 3 filed a joint written statement. Defendant No. 4 is an alienee of one of the items of the suit schedule property. They contended though plaintiff is the lawfully wedded wife of Basavannappa she was not on cordial terms with him, she did not lead a married life and Basavannappa lived at Bidarahali Village with his keep mistress and died there only in his sister's house. Plaintiff is not the heir and has not inherited the properties of the deceased basavannappa. She has no title to the property. She was never in possession of any of the property. She is a resident of Bannikoppa. It is also pleaded that Basavannappa sold his suit house long back to defendant No. 1 and thus defendant is in possession of the house property since then. The specific stand taken by the defendants is that Basavannappa had taken in adoption defendant No. 3 manjunath with all religious ceremonies and giving and taking on 9-7-1992 at Bellatti and has executed an adoption deed which is duly registered on 9-7-1992. Defendant No. 3 has acquired title and possession of all the properties of deceased Basavannappa and plaintiff cannot question his adoption and title. Further, it was stated that the deceased basavannappa has executed a Will dated 9-7-1992 which has been duly attested and duly registered in favour pf defendant No. 3 confirming his adoption and title and right to all properties under the said Will. So on the strength of the Will also, defendant No. 3 has acquired full title and rights to all the properties of the deceased Basavannappa. As such, the plaintiff cannot question his title. It is reiterated that the plaintiff has not at all attacked or questioned the Will made by deceased Basavannappa on 9-7-1992 and got registered also on that day. They have denied that Basavannappa was ailing six months prior to his death and he was behaving as an abnormal man i. e. , as a man of unsound mind. It is asserted that basavannappa was in sound state of mind at the time of the adoption and at the time of execution of the Will. It is specifically contended that it was not necessary to consult the plaintiff regarding adoption as obviously she was not in cordial terms and never lived with Basavannappa. The said consent was not necessary. Such impossible condition is illegal and opposed to equity and justice. The right of Basavannappa could not be curtailed at all on such account. The adoption cannot be illegal. If consent is possible, omission may affect and vitiate the adoption, otherwise it cannot. The allegation of impersonation of basavannappa was denied. It was contended that the plaintiff is not in possession of any of the properties. The entries are lawfully made and it cannot be set aside.