| SooperKanoon Citation | sooperkanoon.com/1234357 |
| Court | Karnataka High Court |
| Decided On | Dec-14-2022 |
| Case Number | RFA 298/2009 |
| Judge | V SRISHANANDA |
| Appellant | Smt Padmavati W/o. Late M K Ananthaswamy |
| Respondent | Smt Ramamani W/o. Late M K Ramachandra Rao |
® 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE14H DAY OF DECEMBER, 2022 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA R.F.A. NO.298/2009 (PAR) BETWEEN: SMT. PADMAVATI W/O. LATE M.K. ANANTHASWAMY RESIDING AT NO.301/92, MALAKALA APARTMENTS, OPP. SRI RAM MANDIR, EAST PARK ROAD, MALLESHWARAM, BANGALORE-560003. DIED ON1211.2017 LEGAL REPRESENTATIVE OF DECEASED APPELLANT1a) SMT. VIJAYA W/O PANKAJ LAKUR D/O LATE PADMAVATHI AND M.K.ANANTHASWAMY, AGED ABOUT48YEARS, RESIDING AT NO.301/92, MALAKALA APARTMENT, OPP. TO SRI RAM MANDIR, EAST PARK ROAD, MALLESWARAM, BANGALORE-560003. AMENDED AS PER THE
ORDERDATED0501.2018. …APPELLANT (BY SRI M.R.RAJAGOPAL, SR. COUNSEL FOR SRI. V. RAVIPRAKASH, ADVOCATE) 2 AND:
1. SMT. RAMAMANI W/O LATE M.K.RAMACHANDRA RAO, AGED ABOUT71YEARS, RESIDING AT NO.1262, 9TH MAIN ROAD, WEST OF CHORD ROAD, II STAGE, MAHALAKSHMIPURAM, BANGALORE-560086. DIED ON1712.2012 1(a) AVINASH G. S/O RAMAMANI, AGED ABOUT25YEARS, R/AT NO.2820, 12TH MAIN 'D' BLOCK, RAJAJINAGAR2D STAGE, BANGALORE-560010.
2. SMT. NAGARATHNA W/O LATE ANANDARAO, RESIDING AT NO.202/92, MALAKALA APARTMENTS, OPP. SRI RAM MANDIR, EAST PARK ROAD, MALLESHWARAM, BANGALORE-560033. 2(a) SHRI GURUPRASAD S/O LATE ANAND RAO, RESIDING AT N.301/92, MALAKALA APARTMENT, OPP. TO SRI RAMMANDIR, EAST PARK ROAD, MALLESWARAM, BANGALORE-560003. …RESPONDENTS [BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR SRI. VARUN PAPIREDDY, ADVOCATE FOR R1(a); SRI. PRAKASH HEGDE K., ADVOCATE FOR R2(a)]. 3 THIS RFA IS FILED UNDER SECTION96CPC AGAINST THE
JUDGMENTAND DECREE DATED0907.2008 PASSED IN O.S.NO.840/2001 ON THE FILE OF THE I ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH.NO.2), DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON0911.2022, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT1 The present appeal is directed against the judgment and decree passed in OS No.840/2001 dated 9.7.2008 on the file of the I Additional City Civil and Sessions Judge, Bengaluru City (CCH2, whereby, the suit of the plaintiff is decreed as under:
"The suit of the plaintiff is hereby decreed and it is held that the plaintiff is entitled to 1/3 share and its separate possession in the suit schedule property. Partition can be effected by appointing the Court Commissioner. No Order as to costs. Draw preliminary decree accordingly."
4 2. Parties are referred to as plaintiff and defendants for the sake of convenience, as per their original rankings before the Trial Court.
3. Brief facts which are necessary for disposal of the appeal are as under: Sri M.K. Ramachandra Rao, who is the husband of the plaintiff Ramamani and the husband of the first defendant M.K. Anantha Swamy were brothers and sons of Sri M.R. Keshavamurthy Rao. Second defendant is the daughter of Sri M.R. Keshava Murthy Rao. Ramachandra Rao and Anantha Swamy died in the year 1966 and 1996 respectively. Their father Keshavamurthy died in the year 1972. Sri Keshavamurthy Rao being the father-in-law of the plaintiff and first defendant, had inherited immovable property bearing No.92 situated at East Park Road, Malleshwaram, which is more fully described in the schedule [hereinafter referred to as the 'suit property' for short].. Husband of plaintiff having pre-deceased his father Keshavamurthy Rao without any issues, left behind 5 plaintiff as his only legal heir. Similarly Anantha Swamy who is the husband of first defendant, also died in the year 1996 leaving behind the first defendant as his only legal heir to succeed to his estate. Thus, suit property left by Sri Keshavamurthy Rao is inherited by the plaintiff and defendant Nos.1 & 2 who are the daughters-in-law and daughter of Sri Keshavamurthy Rao. It is further contended by the plaintiff that defendants 1 & 2 colluded with each other and are trying to alienate the suit property and therefore, plaintiff filed the suit for partition seeking her 1/3rd share in the suit property.
4. Upon service of suit summons, defendants 1 & 2 appeared before the Court through their counsel and filed a common written statement. In the written statement, the relationship is admitted so also the death of Keshavamurthy Rao and his sons. They also admit that suit property was inherited by Sri Keshavamurthy Rao. But denied the share of the plaintiff in the suit property. 6
5. It is contended that after the death of Ramachandra Rao, his wife plaintiff-Ramamani remarried one Gururaj on 31.5.1968 and therefore, when the succession opened, she was not a legal heir to the family, having remarried Mr. Gururaj. It is further contended that after the death of Keshavamurthy Rao on 11.05.2012 at the time of partition took place between the husband of the first defendant and his sister Shantha and also mother Smt. Sundara Bai - wife of Keshavamurthy Rao. Therefore, it is contended that when the plaintiff has remarried one Gururaj, the plaintiff has no right whatsoever in the suit property and sought for dismissal of the suit.
6. Based on the rival contentions of the parties, the Trial Court raised the following issues: (1) Whether the plaintiff proves that the suit schedule property is the joint family property of her late husband M.K. RamachandraRao and husband of defendant No.1 M.K.Ananthasway and father of defendant No.2-M.R.Keshavamurthy Rao ?. 7 (2) Whether the defendants prove that the plaintiff has remarried one Mr.Gururaj on 31.5.1968 after the death of her husband. Hence, she is not the legal heir of the deceased M.K. RamachandraRao - brother of the defendant No.2 ?. (3) Whether defendants further prove that, there was a partition in the schedule property on 11.5.1972 between defendant No.2, M.K.Ananthaswamy-husband of defendant No.1 and Smt. Sundrabai-wife of late M.R.KeshavamurthyRao, who is the father-in- law of plaintiff No.1 and defendant No.1, and that partition binds the plaintiff ?. (4) Whether the plaintiff is entitled to the partition and separate possession of 1/3rd share in the suit schedule property?. (5) What Order or decree?.
7. In order to prove the case of the plaintiff, plaintiff Ramamani got examined herself as PW-1 and relied on 10 documentary evidence on record which were exhibited and marked as Exs.P1 to P10 comprising of certified copies of the sale deeds, property register extracts and partition deed. 8
8. On behalf of the defendant, there was no oral and documentary evidence adduced or produced before the court.
9. On conclusion of the recording of the evidence on behalf of the plaintiff, the learned Trial Judge heard the parties and decreed the suit of the plaintiff as referred to supra.
10. Being aggrieved by the same, the first defendant is in appeal on the following grounds: The trial court has erred in not appreciating that Sec.24 of the Hindu Succession Act 1956 as it then stood disentitled Respondent No-1 from inheriting the property of Sri Keshavamurthy Rao. The trial court itself has observed that in Para 6.01 of the impugned order that:
"It is also an undisputed fact that the propositus M.R. Keshvamurthyrao also died in the year 1972". The trial court has also observed in the same Para of the impugned order that:
"Further, it is an undisputed fact that (sic on) the death of husband of the plaintiff, she remarried one Gururaj on 31.5.1968". 9 The Respondent No-1 in her cross examination has herself conceded that she remarried Gururaj on 31.5.1968. Having observed this, the trial court should have appreciated that since Respondent No-1 was a widow of a predeceased son and "had married on the date on which succession opened", that is, by 1972 on the death of Sri Keshavamurthyrao, she is not entitled to succeed to the property of the intestate Sri MR Keshavamurthyrao as per sec. 24 of the Hindu Succession Act, 1956 as it then stood. The trial court failed to notice that sec.24 was omitted by the Hindu Succession (Amendment) Act only in 2005 and operative prospectively with effect from 9.9.2005 sec. 5 of the Hindu Succession (Amendment) Act, 1956 which omits sec.24 of the act does not have retrospective or retroactive operation. The trial court erred in not applying section 24 of the Hindu Succession Act, 1956 as it then stood to the case on hand. The trial court failed to notice that at the time the succession opened, that is in 1976, Respondent No-1 was disqualified from succeeding to any portion of the property of Sri Keshamurthyrao due to her remarriage prior to his death. subsequent amendment in 2005 omitting sec. 24 of the Hindu Succession Act, 1956 cannot have 10 the effect of opening flood gates entitling those otherwise disqualified from succeeding to the property of the deceased. The trial court has relied upon the decision in AIR1996SC46 AIR2005Kar. 422 and AIR1983Pat.33 in which it has been observed that there is no law which takes away a right vested when the succession opens. While the appellant has no grounds against the proposition of law in these cases, the appellant submits that it does not cover factual position in the case on hand. The trial court has failed to observe that since the widow had already remarried on the date on which succession opened, since sec. 24 of the Hindu Succession Act was in force, no right whatsoever vested in her. When no right vested in her in the first place, the question of taking it away does not arise. Trial court failed to appreciate that parties conduct their affairs as per the prevailing law. In 1972 when the partition took place sec. 24 of the Hindu Succession Act was in force which disentitled Respondent No-1 from claiming any share in the suit schedule property. Even in 1999 when the appellants and others entered into a development agreement and the construction was completed Sec. 24 of the Hindu Succession Act 11 which disentitled Respondent No- 1 from claiming any share in the suit schedule property was in force. Thus the conduct affairs of the appellant were governed by Sec.24 of the act only. The effect of omission of this provision cannot be to take away the rights of the appellant, respondent No-2, developer and other third parties in the schedule property. Any such interpretation of sec. 24 would lead to absurdity and would imply taking away lawfully vested rights and giving rights to those persons who were otherwise disentitled to claim such rights. The trial court has failed to observe that the suit is barred by limitation. Article 110 of the Limitation Act prescribes a limitation period of 12 years for a person excluded from a joint family property to enforce a right to the share therein. Respondent No-1 excluded herself from the joint family immediately upon her remarriage in 1968. Further, the trial court failed to observe that a partition had already place between under an unregistered partition deed dated 11.5.1972, entered into between the husband of Appellant No-1, late Sri M.K.Ananthswamy, his daughters, Respondent No-2 and late Sri Shanta and his wife late Smt. Sundarabai and respondent was aware of the said partition between the appellant and others. Infact Respondent No-1 was aware as 12 early as 1972 about the said partition. She has never sought to question the same. She was aware that she did not have any right in respect of the suit schedule property. She has in her plaint suppressed the fact of the said partition. (a) That the order passed by the trial court dated 30.11.15 so far as with respect to validity of adoption deed set up by the appellant in I.A12013 by holding that the exhibit A5 is a valid deed of adoption and AW1 Avinash is adopted son of deceased plaintiff and her husband M.N.Gururaj Rao is without proper appreciation of documentary and oral evidence on record and as such the order passed by the trial court in holding that exhibit A5 is a valid deed of adoption viewed from any angle cannot be sustainable in the eye of law and same is liable to be set aside. (b): It is submitted that the trial court has failed to look into the fact that Smt. Ramamani has not given consent for adoption of deed in writing either in the proceedings held before the Hon'ble District Judge of Dakshina Kannada, Mangalore in Misc. case No.75/1987 nor she stood as witness to exhibit A5 which is registered adoption deed which has not been properly appreciated by the trial court. 13 (c) : It is submitted that the trial court has failed to look into the fact that as per section 7 of the Hindu Adoption and Maintenance Act it is mandatory that the consent of the wife must be expressly given for husband to adopt a child. It is submitted that in total in support of his contention AW1 got marked as many as five documents. That by careful perusal of the said document nowhere in those documents it can be seen that Smt. Ramamani has given her willful consent expressly for adopting AW1 by her husband. It is submitted that without appreciation of the entire documents on record the trial court has only relied upon exhibit A1 i.e. order passed by the Hon'ble District & Sessions Judge, Mangalore in Misc. 75/1987 wherein the trial court without there being any documentary evidence on record at the time of passing the order has held that consent of wife is there for adoption of AW1 but the said order has not been supported by any express consent i.e. either by way of filing any affidavit or there was no documentary proof to come to the conclusion. It is very relevant to note that AW1 has not produced any document to show that Smt. Ramamani has given express consent. That when such being the position now holding that since exhibit A1 is the judicial order 14 that said order can no way be disagreed and only relying upon the said document the trial court has passed the order without appreciating the law laid down by the Hon'ble Supreme Court in AIR2011SC644and as such the order passed by the trial court on IA12013 viewed from any angle cannot be sustainable in the eye of law and as such judgment passed by trial court in OS8402001 and subsequent order on I.A No-1/13 holding that adoption of AW1 is valid is also liable to be set aside. Respondent No-1 was also aware that the appellant has entered into the development agreement and the flats were already constructed and possession was handed over to third parties by the time the suit was filed. Respondent No-1 is estopped from claiming her share in the property.
11. Re-iterating the grounds urged in the appeal memorandum, Sri M.R. Raja Gopal, learned Senior counsel vehemently contended that the learned Trial Judge has grossly erred in decreeing the suit of the plaintiff. It is also contended that the Trial Court has erred in law in decreeing the suit holding that re-marriage of the plaintiff 15 did not take away the rights of the plaintiffs in the suit property and sought for allowing the appeal.
12. He also pointed out that the Trial Court did not take into consideration about the effect of Section 24 of the Hindu Succession Act and sought for allowing the appeal.
13. He also urged that during the pendency of the appeal, plaintiff Ramamani died. Her alleged adopted son Avinash has been brought on record and he has no interest in the suit property and therefore, appeal needs to be allowed.
14. In support of his contentions, he has relied on the judgment rendered in the case of Lachman Singh vs. Kirpa Singh and others reported in AIR1987SC1616 wherein it has been held as under:
"4. The only question which is to be determined here is whether the expression “sons” in clause (a) of Section 15(1) of the Act includes stepsons also i.e. sons of the husband of the 16 deceased by another wife. In order to decide it, it is necessary to refer to some of the provisions of the Act. Section 3(j) of the Act defines “related” as related by legitimate kinship but the proviso thereto states that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another and that any word expressing relationship or denoting a relative shall be construed accordingly. Section 6 and Section 7 of the Act respectively deal with devolution of interest in coparcenary property and devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru and illom. Sections 8 to 13 of the Act deal with rules of succession to the property of a male Hindu dying intestate. We are concerned in this case with the rules of succession to the property of a female Hindu dying intestate. Sections 15 and 16 of the Act are material for our purpose. Ordinarily laws of succession to property follow the natural inclinations of men and women. The list of heirs in Section 15(1) of the Act is enumerated having regard to the current notions about propinquity or nearness of relationship. The words “son” and “stepson” are not defined in the Act. According to Collins English Dictionary a “son” means a male offspring and “stepson” means a son of one’s husband or wife by a former union. Under the Act a 17 son of a female by her first marriage will not succeed to the estate of her “second husband” on his dying intestate. In the case of a woman it is natural that a stepson, that is, the son of her husband by his another wife is a step away from the son who has come out of her own womb. But under the Act a stepson of a female dying intestate is an heir and that is so because the family headed by a male is considered as a social unit. If a stepson does not fall within the scope of the expression “sons” in clause (a) of Section 15(1) of the Act, he is sure to fall under clause (b) thereof being an heir of the husband. The word “sons” in clause (a) of Section 15(1) of the Act includes (i) sons born out of the womb of a female by the same husband or by different husbands including illegitimate sons too in view of Section 30 of the Act and (a) adopted sons who are deemed to be sons for purposes of inheritance. Children of any predeceased son or adopted son also fall within the meaning of the expression “sons”. If Parliament had felt that the word “sons” should include “stepsons” also it would have said so in express terms. We should remember that under the Hindu law as it stood prior to the coming into force of the Act, a stepson i.e. a son of the husband of a female by another wife did not simultaneously succeed to the stridhana of the female on her dying intestate. In that case the son 18 born out of her womb had precedence over a stepson. Parliament would have made express provision in the Act if it intended that there should be such a radical departure from the past. We are of the view that the word “sons” in clause (a) of Section 15(1) of the Act does not include “stepsons” and that stepsons fall in the category of the heirs of the husband referred to in clause (6) thereof.
15. The learned counsel for the appellant has also filed an application with the following documents as additional evidence and sought for considering the same for remand of the matter to the Trial Court:
"APPLICATION UNDER
ORDER41 RULE27OF THE CODE OF CIVIL PROCEDURE, 1908 The Appellant prays that for the reasons sworn to in the accompanying affidavit; this Hon'ble Court may be pleased to permit the Appellant to produce the following additional evidence in the above case, in the interests of justice. Sl. Description of the Document Date No.1 Registered Partition Deed 11.5.1972 between Late Sri. M.K.Ananthaswamy, Respondent No.2, Smt.Shantha, Smt.Sundara Bai. 2 Joint affidavit executed by 27.08.1986 Sri.M.K. Ananthaswamy and 19 Smt.Sundarabai relinquishing their right in property bearing No.93 in favour of Respondent No.2. 3 Development Agreement with 31.10.1999" M/s. Malakala Engineers and Builders.
16. Per contra, Sri G.Papi Reddy, learned Senior counsel supported the impugned judgment and vehemently contended that the second husband of Smt. Ramamani (plaintiff) having taken adoption of Sri Avinash as his son, he is entitled to the right, title and interest in respect of the suit property and therefore, he has been substituted as the legal heir of Smt.Ramamani and the decree granted by the Trial Court granting 1/3rd share in the suit property to the plaintiff is just and proper and sought for dismissal of the appeal.
17. He also pointed out that the defendant did not choose to place any oral and documentary evidence on record and therefore, they cannot contend contrary to the material evidence on record and sought for dismissal of the appeal. 20
18. He also urged that the adoption of Sri Avinash as his son by Sri Gururaja Rao, as per Section 12 of the Hindu Adoptions and Maintenance Act, 1956, the effect is that he would also become the legal heir of Ramamani and therefore, he is entitled for share i.e., allotted to Ramamani and sought for dismissal of the appeal.
19. Sri G Papi Reddy, learned Senior counsel has relied on the following judgments: (1) In the case of Cherotte Sugathan (dead) through LR’s and others –Vs- Cherotte Bharathi and others reported in (2008)2 SCC610 wherein it has been held as under: “12. Upon the death of Sukumaran, his share vested in the first respondent absolutely. Such absolute vesting of property in her could not be subjected to divestment, save and except by reason of a statute.” (2) In the case of Aruna and Another -Vs- Madhavva and others reported in AIR2005KARNATAKA422 wherein it has been held as under: “10. In view of the aforesaid specific provision under the Hindu Succession Act, it is clear that the 21 provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, relied upon by the first appellate Court has no force of law and as per Section 4 of the Hindu Succession Act, 1956, the said Act overrides the provisions of law prior to its commencement. It is clear that for disqualification, the widow should have remarried when the succession opens and the succession would open on the death of the husband and in the present ease, the succession opened on 13-4-86, the date on which the husband of the first defendant died and it is not disputed that on 13-4-86, the first defendant was not remarried. Therefore, the finding of the first appellate Court that in view of the provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, the first defendant is not entitled to succeed to the suit properties is clearly illegal and contrary to the provisions of Section 24 of the Hindu Succession Act and hence, the same is liable to be set aside and accordingly, I answer the substantial question of law No.2 in the negative. It is not in dispute that the schedule properties were joint family properties. The share to which Madhavva (the original plaintiff) would be entitled to has been correctly calculated by the first appellate Court as it is clear from the admitted facts that Bharamappa died on 18-8-63 (i.e., after coming into force of the Hindu Succession Act) leaving behind his Wife Madhavva, two 22 daughters and a son and, therefore, in view of Section 6 of the Hindu Succession Act, if there was notional partition between Bharamappa on the date of his death, the property has to be divided between Bharamappa and his son Mahaveer and since in a partition between father and son, the mother will have a share, all the three i.e., Bharamappa, Madhavva and their son Mahaveer would be entitled to 1/3rd share each and out of 1/3rd share of Bharamappa, his wife and children will succeed as they are Class-1 heirs and defendants 2 and 3 gets 1/12th share each and Madhavva and Mahaveer gets 1/3 + 1/12 = 5/12 share each. Mahaveer predeceased his mother as he died on 13-4-86 leaving behind his wife-Aruna alias Savita, defendant No.1 and his mother-Madhavva (the original plaintiff) and since both of them are Class-1 heirs, they will succeed to 5/12th share of Mahaveer in the suit properties and, therefore, Madhavva and defendant No.1 will get 5/24th share each. Therefore, the share to which Madhavva (the original plaintiff) would be entitled to is 5/12 + 5/24 = 15/24 (i.e. 5/8) share and defendant No.1 would get 5/24th share and, defendants 2 and 3 would be entitled to 2/24th share and, therefore, it is clear that the finding of the first appellate Court that the original plaintiff Madhavva is entitled to 5/8th share and not 5/12th share as decided by the trial Court is 23 correct. However, so far as the finding of the first appellate-Court that the respondent who has come on record as a legal representative is entitled to succeed to 5/8th share of Madhavva is clearly perverse and arbitrary. Sri Siddarth alias Anilkumar, the legal representative of Madhavva (the original plaintiff) claims that he is her adopted son and that she had executed a Will in his favour as propounced by him. The first appellate Court allowed the legal representative to lead additional evidence and the additional evidence has been adduced as the material on record clearly shows that Exhibits P18 to 27 were got marked and P.Ws. 4 to 7 were examined and D.W.3 was also examined. However, while considering the question as to who succeed to 5/8th share of Madhavva (the original plaintiff), the first appellate Court has not given any finding as to whether the legal representative has proved that he is the adopted son of Madhavva and he has succeeded to her right by virtue of Will executed by her which he has propounded. The findings on the questions a to whether the legal representative is the adopted son of Madhavva and succeeds to 5/8th share of Madhavva in view of the Will propounded by him is essential as the same would decide the question as to who succeeds to the right of Madhavva and, therefore, it would be a substantial question which would decide the lis between the 24 parties as to who succeeds to 5/8th share of Madhavva. The legal representative would succeed to 5/8th share of Madhavva (the original plaintiff) only if he proves the execution of Will by her in his favour, failing which the defendants 2 and 3, the daughters of Madhavva would succeed to her 5/8th share in suit property. In the absence of any finding to that effect, it is clear that the finding given by the first appellate Court that the legal representative would be entitled to the share of Madhavva is clearly perverse and arbitrary for non-consideration of the essential question as to whether the legal representative has proved that he is the adopted son of Madhavva (the original plaintiff) and he has succeeded to her property by virtue of the Will executed by her in his favour. Therefore, it is clear that the finding of the first appellate Court that the legal representative would succeed to the right of Madhavva without giving a finding on his adoption and execution of Will propounded by him cannot be sustained and mere fact that he is brought on record as a legal representative of Madhavva would not prove his adoption and execution of Will as he is not a natural heir of Madhavva and claims to be the adopted son and beneficiary under the Will propounded by him. Accordingly, I answer the substantial question of law No.3 in the Affirmative. In view of the fact that the first appellate Court being 25 a final Court on the question of law has failed to give findings on the additional evidence recorded regarding adoption and due execution of Will propounded by the legal representative of Madhavva (the original plaintiff), it is clear that the matter is liable to be remitted back to the first appellate Court with a direction to give a finding on the claim made by the legal representative that he is the adopted son of Madhavva and would succeed to the property of Madhavva and decide the matter in accordance with law.” (3) In the case of Smt. Gajodhari Devi –Vs- Gokul and another reported in AIR1990SC46 wherein it has been held as under: “3 The short question for determination in this appeal is as to whether the appellant being admittedly the widow of a co-sharer of the holding at the time Ram Sewak died, she ceased to be a co- sharer or tenure holder on getting remarried to Raghraj. The appellant became widow in 1953. Ram Sewak died some time in 1961. At the time of death of Ram Sewak the appellant was the widow of his son and was entitled to a share in the property on that basis. Admittedly, she remarried subsequently. The right of the appellant has to be determined with reference to the time when Ram Sewak died. There is no law which takes away the appellant’s right 26 which vested in her when succession opened and it is not the case of the respondents that on remarriage there has to be divesting. Unnecessary emphasis was laid on the fact of remarriage by the Tribunals below. We set aside the judgment of the Board of Revenue affirming the order of the Additional Commissioner which upheld the decision of the Sub- Divisional Officer in the suit for partition under Section 176 of the Act.” (4) In the case of Vidhyadhar –Vs- Manikrao and another reported in (1999)3 SCC573 wherein it has been held thus: “17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in 27 Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.” (5) In the case of Krishnamurthi Vasudeorao Deshpande and another –Vs- Dhruwaraj reported in AIR1962SC59 wherein it has been held as under: “7. In the present case, Krishnabai owned the property as full owner on the death of her father Narasappagouda, according to the Hindu law in the area in which the property in suit lay. But her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband. Vasappa and after him, his sons, inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as 28 suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai, the widow of the, family, exists and is capable of adopting a son who becomes a coparcener.
20. Sri G. Papireddy, learned Senior counsel, also pointed out as to whether Sri Avinash, is the legal heir of Ramamani or not, was seriously questioned and therefore, this court directed the Trial Court to record a finding on the said aspect of the matter and the learned Trial Judge has recorded a finding on the same issue that he is the adopted son of Gururaj and Ramamani and therefore, the plaintiff is now represented by Sri Avinash who is the adopted son of Ramamani and Gururaj. The said finding is not challenged by the appellant by amending the appeal memorandum or raising any additional grounds in the present appeal.
21. In view of the rival contentions, following points would arise for consideration:
29. (i) Whether the additional evidence placed on record by the appellant needs to be allowed and the matter needs to be remitted to the Trial Court for consideration in accordance with law?. (ii) Whether the defendants have made out a case that re-marriage of Ramamani after the death of her husband Ramachandra Rao in the year 1967, has resulted in divesting the rights of Ramamani seeking partition in the joint family?. (iii) Whether the defendants have made out a case that Sri Avinash adopted son of Gururaja Rao, who is the second husband of Ramamani is not entitled for a share in the suit property and thus appeal needs to be allowed?. (iv) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?. (v) What order?.
22. In the case on hand, Smt. Ramamani has filed an affidavit in lieu of her examination in chief and relied on 30 six documents and they are marked as Exs.P1 to P6. Among them, Ex.P1 executed by the defendant in favour of the third parties. Ex.P2-5 are the certified copy of the of the sale deed dated 18.4.2001 and Ex.P6 certified copy of the gift deed dated 13.6.2001.
23. She has further produced the property register extract and marked the same as Exs.P7 to P9. She has produced the certified copy of the partition deed dated 13.5.1946 entered into by father-in-law Keshavmurthy Rao and his brothers as per Ex.P10.
24. In her cross examination, she admits that she was being called as Rama and she has been residing in Mahalakshmi layout. She admits that she married Ramachandra Rao about 52-53 years earlier to the date of cross examination and on February, 21, 1962 Ramachandra Rao was passed away. She admits that she had no issues in the wedlock of herself with Ramachandra Rao and about an year . She has answered that after the death of Ramachandra Rao, for about an year, after the 31 death of Ramachandra Rao, she lived in the same house along with other family members and later on, she re- married to Sri Gururaja Rao through registered marriage and she is demanding right in respect of her Ramachandra Rao’s share in the suit property. She admits that in the year 1971, there was a partition in the family without allotting any share to the Ramachandra Rao.
25. Before this court, when Avinash (adopted son of Ramamani and Gururaja), wanted to come on record by substituting Ramamani, this court by order dated 12.3.2015, directed that an enquiry be held about the validity of the adoption. The said order reads as under:
"1.A.No.1/2013 is filed by the applicant claiming to be the legal representative of deceased respondent No.1. I.A.No.2/2013 is again filed by the very applicant seeking to set aside the abatement and I.A.No.3/2013 is filed by the same applicant seeking to come on record as the legal representative of respondent No.1. It is also noticed that I.A.Nos.4, 5 and 6 of 2013 are filed by one Smt. VijayaLakur claiming to be the daughter of one of the close relatives of the deceased 32 respondent No.1. However, the learned counsel for the applicant has filed a memo of retirement and has abandoned the case. Therefore, the applications are dismissed for non-prosecution. However, it is found that the applicant in I.A.No.1/2013 claims to be the adopted son of respondent No.1 who was the plaintiff before the Trial Court. The application is supported by an Adoption Deed, under which the applicant claims to be a legal representative of the deceased respondent No.1. The learned counsel for the appellant vehemently disputes the validity of such adoption and would point out that in the adoption deed there is no indication of consent having been given by respondent No.1, to such adoption made by her husband during his lifetime and therefore, it would not be a valid adoption in terms of Section 7 of the Hindu Adoption and Maintenance Act, 1956. While, the learned counsel for the applicant would vehemently contend that there is no such infirmity and it is evident that he was validly adopted and that he is indeed the legal representative of respondent No.1. Having regard to this disputed question of fact, which arises for the first time in this appeal, it would be necessary that an enquiry be conducted, as to whether the adoption claimed by the applicant is indeed valid. Therefore, on the question as to the validity of the adoption and the claim of the applicant 33 being the legal representative of respondent No.1 would have to be enquired into. Therefore, the matter is remitted to the Trial Court to conduct an enquiry and arrive at its finding as to the validity of the adoption deed, set up by the applicant and remit the record back to this Court for further adjudication. Accordingly, the parties are directed to appear before the Trial Court, without any further notice, on 7.4.2015, before the I Additional City Civil and Sessions Judge, Bengaluru City CCH-2. The Registry is directed to remit the record to the Trial Court forthwith. The court below shall endeavour to hold an enquiry and submit a report within a period of 3 months from the date of receipt of the record. Await report from the court below. Post after receipt of the report.
26. In pursuance thereof, the matter was referred to Trial Court for recording the finding on the validity of the adoption deed relied on by Avinash. Learned Trial Judge based on the order dated 12.3.2015 held an enquiry and by order dated 30.11.2015, passed an order as under:
"Ex.A-5 is a valid deed of adoption and AW-1 Avinash is the adoptive son of deceased plaintiff and her husband – M.N. Gururaja Rao.” 34 27. As pointed out earlier, there was no challenge to the said order by amending the appeal grounds even after the finding recorded by the Trial Court as referred to supra.
28. Thereafter, Avinash was substituted as the legal representative of the deceased Ramamani. While so passing the order dated 30.11.2015, the learned Trial Judge has relied on the documents namely Ex.A1 which is the order passed by the District Court, Dakshina Kannada, allowing the application filed under Section 9 of Hindu Adoptions and Maintenance Act. Ex.A2 is the letter addressed by Advocate Sri Christopher AJ Lobo to Gururaja Rao about A1. Ex.A3, A4 are the two more letters which the applicant has relied on and A5 is the adoption deed executed by Sri M.N. Gururaja Rao and A6 is the 10th standard marks card of the applicant, wherein his mother’s name is shown as Ramamani and father's name is shown as Gururaja and A7 is the LIC policy A8 is the LIC premium 35 receipt and A9 is the application given by Sri Gururajarao while admitting the applicant (Avinash) to Vani School.
29. Learned Trial Judge also took into consideration the objections raised on behalf of the first defendant and followed the legal principles enunciated in AIR2011SC644in the case of Gusselal Vs. Gabhubai relied on by the first defendant and then held that adoption deed marked at Ex.A5 is proper and applicant Avinash is the adopted son of Ramamani and her husband M.N.Gururaja Rao.
30. Learned Senior counsel for the appellants Sri M.R. Rajagopal, sought for re-appreciation of the above material on record vehemently contended that the Trial Court ought not to have decreed the suit of the plaintiff and sought for allowing the appeal.
31. On close scrutiny of the materials on record, it is seen that relationship of Ramamani with deceased Ramachandra Rao is not in dispute. Admittedly, 36 RamachandraRao died in the year 1967 and plaintiff married Sri MN. Gururaja Rao on 31.05.1968 through a registered marriage. However, plaintiff and Sri Gururaja Rao did not have any issues in the said marriage as well and therefore, they decided to adopt one Avinash.
32. Material evidence on record referred to supra and the finding recorded by the learned Trial Judge reveals that the adoption of Avinash is legally valid.
33. On re-consideration of the materials on record, with regard to the adoption of Avinash by Ramamani & Gururaj this court is satisfied that only with an intention to claim a share in the property, Ramamani & her second husband Gururaja Rao did not get Sri Avinash in adoption that too by approaching the court through Ex.A1 in the year 1988 by filing a petition in the year 1987.
34. The plaintiff did not envisage the present litigation at that juncture. The letter written by the Advocate and other letters written by the society in favour 37 of Sri Gururaj marked at Exs.A4 and A5 amply establishes the adoption of Avinash by Gururaja Rao. Ex.P5 is the register of adoption deed entered into in the year 1990.
35. It is too much to imagine that the said adoption is made by Gururaja Rao and Ramamani solely with an intention to lodge a claim in respect of the suit property that too in the year 1988. It is also pertinent to note that it is not Avinash who filed the suit at the first instance and it is Ramamani who filed the suit at the first instance and only during the pendency of this appeal Ramamani having died Avinash got substituted himself as the legal representative of the deceased Ramamani. Application for substitution was contested. Enquiry was ordered by this court and the report given by the learned Trial Judge amply establishes that the adoption is held to be valid. Therefore, Avinash was allowed to represent the estate of Ramamani.
36. Now, coming to the merits of the case, it is the unequivocal say of Sri M.R. Rajagopal, learned counsel for 38 the appellant that Ramamani is not entitled for share under Section 24 of the Hindu Succession Act. Section 24 of the Hindu Succession Act before it is repealed by Act of 2005, it reads as under:
"Section 24. Certain widows remarrying may not inherit as widows-Any heir who is related to an intestate as the widow of a pre-deceased son of a pre-deceased son or the widow s brother shall not be entitled to succeed to the property of the intestate as such widow, on the date the succession opens, she has re-married.
37. Sri M.R. Rajagopal, learned counsel for the appellant in this regard placed reliance on the judgment referred to supra and contended that she does not have any right over the suit property in view of her second marriage.
38. Sri G.Papireddy, learned Senior counsel representing the contesting respondent/plaintiff, relied on the decisions referred to supra.
39. It is pertinent to note that in respect of the share in the property of the adoptive mother, the son 39 adopted by a father is entitled or not is no longer resintegra. In the decision relied on by the learned counsel for the respondent in the case of Krishnamurthi Vasudeorao Deshpande v. Dhruwaraj, (1962) 2 SCR813in Paragraph No.7, it is held as under:
"7. In the present case, Krishnabai owned the property as full owner on the death of her father Narasappagouda, according to the Hindu law in the area in which the property in suit lay. But her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband. Vasappa and, after him, his sons, inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible oh the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai, the widow of the family, exists, and is capable of adopting a son, who becomes a coparcener."
40 40. REGARDING POINT NO.1: It is settled principles of law that if the material on record is sufficient enough to dispose of the appeal on merits, normally no permission can be granted to place the additional evidence on record by exercising power vested in the court under Order LXI Rule 27 of CPC.
41. The additional documents i.e., sought to be produced on behalf of the appellant, referred to supra are registered partition deed, joint affidavit and development agreement. It is pertinent to note that these documents were in the custody of the appellant, even at the time of recording of the evidence in the suit. No attempts were made to produce the same before the Trial Court. The contents of the affidavit in support of the application do not make out any good ground to allow the additional evidence on record.
42. Exercising power to allow the additional evidence on record must not be construed as providing one more opportunity for them to plug the loop holes in the 41 case of the parties. In the absence of any proper explanation as to why, the additional evidence which is now sought, are not produced before the Trial Court, this court is of the considered opinion that the application seeking additional evidence on record needs to be dismissed. Accordingly POINT NO.1 is answered in the Negative.
43. POINT NOS.2 TO4 The right to seek partition by Ramamani was opposed by resorting to Section 24 of the Hindu Succession Act, referred to supra.
44. It is pertinent to note that Section 24 of the Hindu Succession Act got repealed by Hindu Succession (Amendment) Act, 2005 [39 of 2005]. w.e.f. 9.9.2005.
45. Whether the said repeal would be effective or not is not to be taken into account from 9.9.2005 or it should date back to the enactment of Section 24 of the said Act or not is a question that needs the attention of this court. 42
46. In this regard, the learned counsel for the appellant contended that the act is to be construed as on and from 9.9.2005.
47. Per contra, Sri G. Papireddy, learned Senior Counsel contended that in the absence of any settled principles of law with regard to Section 24 of the Act, the court has to draw analogy from the legal principles enunciated in Vineeta Sharma v. Rakesh Sharma, reported in (2020) 9 SCC1 48. This Court considered the arguments of both sides in a pragmatic manner and to give effect to the intention of the legislature, it is admissible to adopt the analogy from the legal principles enunciated in Vineeta Sharma supra, while considering the effective date of repeal in so far as Section 24 of the Act is concerned.
49. Accordingly, even though the act is repealed by the Amendment Act of 2005, w.e.f. 9.9.2005 for all practical purposes, it should be construed that Section 24 43 is also repealed on and from the date of enactment of Hindu Succession Act, 1956.
50. If it is construed as above, Ramamani would be entitled to 1/3rd of Ramachandra Rao and contentions urged on behalf of the appellant that Ramamani is not entitled to any share in the property cannot be countenanced in law.
51. As such, the Trial Court is justified in decreeing the suit of the plaintiff by granting 1/3rd share. Admittedly, the partition deed did not grant any share to the Ramachandra Rao nor granted a share to Ramamani.
52. Further, the material evidence on record is sufficient enough to dispose of the appeal on merits and therefore, the additional documents relied on by the appellant are unnecessary and the matter does not require re-consideration. Nothing prevented the appellant to place the additional evidence on record while, the enquiry was held on the validity of the adoption deed marked at Ex.A5. 44 Further, to counter the case, no further evidence is adduced on behalf of the appellant. Cross examination of Ramamani did not yield any positive result.
53. Therefore, viewed from any angle, the appellant has not made out any good grounds to allow the appeal. Under such circumstances, the Trial Court had to believe the case of the plaintiff and grant decree the suit of the plaintiff accordingly.
54. Thus, on re-appreciation of the material evidence on record, this court is of the considered opinion that the defendants have not made out any case whatsoever much less good grounds to interfere with the well reasoned order of the learned Trial Judge. Accordingly, POINT NOS.2 to 4 are also answered in the Negative.
55. REGARDING POINT NO.5: In view of the findings of this Court on Point Nos.1 to 4, following order is passed:
45.
ORDER(i) I.A filed under Order LXI Rule 27 of Code of Civil Procedure dated 23.3.2009 is dismissed. (ii) Appeal is merit less and accordingly, dismissed. (iii) No order as to costs. Sd/- JUDGE PL*