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Appeal (civil) 5318 of 1999
NAGEGOWDA (DEAD) BY LRS. AND ORS.
DATE OF JUDGMENT: 27/07/2004
S.B. SINHA & S.H. KAPADIA
2004 Supp(3) SCR 141
The Judgment of the Court was delivered by
KAPADIA, J.: This is an appeal by special leave filed by the original
defendant no. 3 against the judgment and order dated 27th July, 1998 passed
by the High Court of Karnataka in R.S.A. No. 1452 of 1995, by which suit
no. 36 of 1988 filed in the Court of Munsiff, K.R. Pet stood decreed.
The undisputed facts giving rise to this civil appeal are as follows :-
Nagegowda (since deceased) filed the title suit in the Court of Munsiff,
K.R. Pet (hereinafter referred to for the sake of brevity as "the trial
Court") seeking a declaration that he was the adopted son of Smt.
Sannananjamma (defendant no. 1) and an absolute owner of the suit property
based on the deed of adoption-cum-settlement dated 12.7.1984 (Ex.Pl). In
the said suit, the deceased plaintiff contended that defendant no. l had
adopted him about 23 years back in accordance with the then prevailing
customs as she had no son. That since adoption he lived in the family of
defendant no. l looking after the suit property. In the said suit, the
plaintiff relied upon Ex.Pl executed by defendant no. 1. Under Ex.Pl, the
earlier adoption was confirmed and the suit property was stated to have
been given to the plaintiff. It was alleged that the suit property was
ancestral and in joint possession and enjoyment of the plaintiff and
defendant no.1. That after the plaintiff attained majority, he became the
manager; looked after the property and that there was no division in the
family properties. In the circumstances, he pleaded that gift deed dated
17.7.1985 executed by defendant no. l in favour of defendant no. 2 was null
and void and without authority of law. The plaintiff further pleaded that
consequently defendant no. 3 did not derive title from defendant no. 2. By
written statement, adoption and plaintiff s title were denied.
By judgment and decree dated 29.11.1991 passed by the trial Court, it was
held that the adoption was not proved; that it was not according to law and
that plaintiff did not acquire any title to the suit property under Ex.Pl,
as there was no description nor value of the suit property mentioned
therein. The trial Court further held that settlement was not stamped and
that there was no evidence of actual delivery of possession. In the
circumstances, the trial Court dismissed the suit.
Being aggrieved, Nagegowda (original plaintiff) carried the matter in
appeal being R. A. NO. 4 of 1992 in the Court of Civil Judge, Srirangapatna
(hereinafter referred to as the "lower appellate Court"). On considering
the evidence on record, the lower appellate Court concluded that the
plaintiff had proved the adoption which had taken place around 1964-65.
However, the lower appellate Court rejected the contention of the plaintiff
that as he was the adopted son, he was entitled to the suit property. In
this connection, it was held that although the adoption stood proved, the
plaintiff did not divest defendant no.l of the suit property which vested
in her by succession on the demise of her husband; that during the life
time of defendant no. l, Nagegowda did not become the owner of suit
property. Affirming the decree of the trial Court, the lower appellate
Court came to the conclusion that Ex.Pl was not a valid settlement and,
therefore, the plaintiff had not become the owner of the suit property.
Consequently, both the Courts below dismissed the suit.
Being aggrieved, Nagegowda, the original plaintiff preferred R.S.A. No.
1452 of 1995 under section 100 CPC before the High Court which took the
view that Ex.Pl itself vested the suit property in the plaintiff and,
therefore, the gift deed dated 17.7.1985 was null and void and consequently
the appellant did derive any title to the suit property. In coming to this
conclusion, the High Court relied on the recitals in Ex. PI. Consequently,
the High Court set aside the concurrent findings given by the Courts below
and allowed the appeal filed by Nagegowda (original plaintiff). Hence, this
civil appeal is filed by defendant no. 3.
We find merit in this civil appeal. An adoption of a son does not deprive
the adoptive mother of the power to dispose of her separate property by
transfer or by will [See: HIndu Law by Mulla, 17th Edn. pages 447 & 449].
In the present appeal, we are concerned with plaintiff s title to the suit
property. The plaintiff was adopted in 1964-65. However, as rightly held by
the lower appellate Court, adoption did not divest Ist defendant of the
suit property which vested in her by succession on the death of her
husband. It is for this reason that the plaintiff relied on Ex.Pl
contending that the said deed was a deed of adoption-cum-settlement.
Transfer of title in favour of the plaintiff had no relevance with the
adoption because mere adoption did not deprive defendant no. l of her right
to dispose of her own disposable property. In the present case, the High
Court had erred in holding that the recital in Ex. PI was sufficient to
constitute transfer of the title. That Ex.Pl itself vested the suit
property on the plaintiff. As held by the lower appellate Court, Ex.Pl has
not been stamped. It does not identify the suit property. It did not
contain valuation. In the circumstances, it did not convey any right, title
or interest in favour of the plaintiff. The High Court has not gone into
these aspects at all. We are in agreement with the views of the trial Court
and the lower appellate Court that there was no valid settlement.
Consequently, the lower appellate Court and the trial Court were right in
dismissing the suit.Before concluding, we may point out that Shri R.S. Hegde, learned counsel
a, pearing on behalf of Nagegowda submitted that Ex.Pl affirms the adoption
which took place in 1964-65. He urged that the lower appellate Court had
erred in holding that although the plaintiff was adopted in 1964-65, the
plaintiff did not become the owner of the suit property during the life
time of defendant no. l. In this connection, it was contended that on
adoption, the plaintiff became a member of the corparcenary as the adoption
was made by defendant no. l as a member of the joint family and, therefore,
on the demise of the husband of defendant no. l, the widow did not become
the absolute owner of the suit property and consequently defendant no. l
had no power or authority to transfer the suit property to defendant no. 2
by the above gift deed. It was urged that a gift of a coparcenary property
by a member is void. That the adopted son was entitled to challenge a gift
of a coparcenary property by the adoptive mother. We are not inclined to go
into this argument. The original plaintiff was the. appellant before the
High Court. He had preferred the second appeal under section 100 CPC. No
question of law was framed as to whether the property in question was
coparcenary. The impugned judg-ment of the High Court proceeds on the
footing of the suit property as the separate absolute property of the
widow. Hence, we cannot permit the plaintiff now to raise such a plea.In the result, we allow this appeal and set aside the judgment and decree
of the High Court and consequently restore the judgment and decree passed
by the lower appellate Court. In the circumstances, there shall be no order
as to costs.