M.G.PURUSHOTHAM Vs. N.K.SRINIVASAN

JUDGEMENT

(1.) Heard the learned counsel for the appellants and learned counsel for the respondents.

(2.) The case of the plaintiff before the Trial Court is that the plaintiff is the native of Nidagatta Village, owning the agricultural lands bearing Sy.No.89/1, measuring 1.16 guntas, Sy.No.90/1 measuring 1.26 guntas, Sy.No.95 measuring 2 acres. 'A', 'B' and 'C' schedule properties are ancestral, apart from the land bearing Sy.Nos.110/3, 115/2 extending 2.06 guntas, which is also ancestral. 'A' and 'B' schedule properties fell to the share of late T. Thammaiah, the half brother of plaintiff as per the registered release deed dtd. 5/5/1943. The 'B' schedule was acquired out of the nucleus from 'A' schedule properties. Except Sy.No.95, all other properties mentioned above were ancestral properties which late Karigowda @ Kariyappa delivered to his share after separation from the brothers Puttaswamy Gowda and Pape Gowda. Late Karigowda, father of plaintiff had two wives by name late Thimmamma and Venkatamma. Through Thimmamma, one son late T. Thimmaiah was born. From second wife late Venkatamma, late K. Thammaiah and plaintiff Srinivasan were born. After the release deed dtd. 5/5/1943, late Thimmaiah was living separately along with wife Nanjamma, till his death in 1954. Late Karigowda, late K. Thammaiah and plaintiff lived as co- parceners till the death of father Karigowda, who died in 1950. Thereafter, late K. Thammaiah also died in the year 1964 intestate and issueless as a bachelor. Accordingly, plaintiff became the sole surviving co-parcener of the undivided family of late Karigowda @ Kariyappa. Late T. Thammaiah died issueless in the year 1954, leaving behind him, his widow Nanjamma and plaintiff. Nanjamma entitled only for maintenance and plaintiff as a half brother entitled for succession to 'A', 'B' and 'C' schedule properties by virtue of the law as prevailed then. Plaintiff was taking care of widow Nanjamma and jointly enjoying 'A', 'B' and 'C' schedule properties and administering the properties. Plaintiff was in Government Service, visiting village periodically and taking care of late Nanjamma, till her death on 5/7/1995. The defendant happens to be the brother is son of late Nanjamma. Therefore, he purports to have taken advantage of his relationship and lonely life of late Nanjamma, he has manipulated some records to claim succession rights to 'A' and 'B' schedule properties. One Guruvaiah, father of the defendant, who is also brother of late Nanjamma created spurious adoption deed dtd. 30/5/1954, that shows late Nanjamma had taken defendant in adoption. A plain reading of the same establish that, it is in the nature of an agreement between Nanjamma and defendant, who was minor aged about 8 1/2 years, who was not represented by a guardian. Adoption deed does not confer any right to the defendant. He remains only as the son of late Guruvaiah. He cannot claim succession rights to the plaintiff schedule properties. Defendant applied for transfer of khatha in respect of suit schedule properties. The same was objected by the plaintiff.

(3.) After the release deed dtd. 16/3/1943, the khatha entries made in the name of late T. Thammaiah. However, the khatha was subsequently changed in the name of late Nanjamma in 1989. Defendant fraudulently got the khatha transferred in his name in collusion with revenue official. Late Nanjamma died on 5/7/1995 in private hospital at Mysore. She was cremated at Mysore and rituals also got performed at residence of the defendant for the sake convenience. On the 5th day ceremony, the plaintiff learnt about the clandestine movements of the defendant to sell away 'A' and 'B' schedule properties. He then brandished a purported adoption deed proclaiming that he is the successor to the schedule properties by virtue of adoption deed. Plaintiff waited till 15/7/1995 i.e., 11thday ceremony of late Nanjamma and given representation to the Tahsildar, Maddur. Then plaintiff issued legal notice to the defendant. In the year 1954, Hindu Adoption Act had not come into vague and therefore, the Hindu Law then prevailing did not warrant an adoption deed as such, defendant was 8 1/2 year old at that time, which was quite against the law then prevailing. There was no giver of the so called adopted child. The father of the defendant was not a party to the deed and the document is not valid. Hence, filed the suit seeking the relief that properties were reverted to the co-parcenery family of late T. Thammaiah i.e., the plaintiff, who is a half brother of the defendant. It is also contended that adoption deed is null and void and the plaintiff is in possession of the properties and hence, he is entitled for the relief of declaration and permanent injunction.