Ramanna Gowda and ors. Vs. Shankarappa and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/375859
SubjectFamily
CourtKarnataka High Court
Decided OnJul-03-1987
Case NumberRegular First Appeal No. 114 of 1976 (with Cross objections)
JudgeP.P. Bopanna and ;K.A. Swaml, JJ.
Reported inAIR1988Kant248; ILR1988KAR1
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 12 and 16
AppellantRamanna Gowda and ors.
RespondentShankarappa and ors.
Appellant AdvocateM.S. Gopal, Adv.
Respondent AdvocateKadidal Manjappa, Adv.
Excerpt:
- workmens compensation act, 1923 [c.a. no. 8/1923]. section 19; [k. ramanna, j] employment injury death of driver due to heart attack while on duty - liability of the insurer - fastening the liability on the insurer/appellant to indemnify the owner of the vehicle nexus between the death of the deceased and the nature of work carried out by him held, considering the nature of work carried out by the deceased who was a driver of heavy vehicle and further as there is no previous history of chest pain or hear attack, the same be related to his nature of work and out of stress and strain for continuously driving the heavy vehicle, he suffered heart attack. as such, the nexus betweens the death of the deceased and the nature of work carried out by him has been clearly established. further, the commissioner was right in holding that the death of deceased arose out of and during the course of his employment under respondent no. 6 and has rightly fastened the liability on the appellant/insurer to indemnify the employer/owner of the vehicle. therefore, the order under challenge does not require any interference. - after the death of one of the coparceners the joint family property continued to retain its character in the hands of the sole surviving coparcener as the widow -of the deceased coparcener was still alive and continued to enjoy the right of maintenance out of the joint family properties. we are satisfied that 'b' schedule contains full description of the properties.swami, j.1. this appeal by defendants 1to11 is preferred against the judgment and decree dt. 22-11-1975 passed by the civil judge, chikmagalur, in o.s. no. 42 of 1974. respondents 1 and 2 are the plaintiffs. in this judgment, respondents i and 2 would be; referred to as plaintiffs 1 and 2 and the appellants as defendants 1 to 11 respectively.2. plaintiff-1 is the adopted son of plaintiff- 2. they filed the suit in 0. s. no. 42, of 1974 for partition and separate possession of half share half share 'b' and 'c' schedule properties and for accounts of management by defendant-1 and also for a decree for past and future maintenance at the rate of rs. 3,000/- per year and for an enquiry into future mesne profits also.3. the relationship of the parties is not in dispute. one harubyle sannegowda was the original propositus. he had 4 sons by name obaiah, ujinanna's, venkappagowda and ramanna gowda. obaiah and ujinanna's branches became extinct as they died unmarried and issueless. venkappagowda died in the year 1940 leaving behind his widow who is plaintiff-2. defendant-i is ranianna gowda and defendant-2 is his wife. defendants 3 to 11 are their children. plaintiff was taken in adoption by plaintiff-2 under a registered deed of adoption marked as exhibit p.1 the suit was instituted on 22-3-1974 for the aforesaid reliefs.4. in the light of the pleadings of the parties the trial court framed as many as 15 issues. it held that the adoption of plaintiff-i was proved and it was valid. it also held that the immoveable properties mentioned in v schedule and moveable properties mentioned in schedule 'c' were joint family properties. however, it further held that items 2, 4, 12, 161 18 and 19 being in possession of tenants were not available for partition. accordingly it excluded them from partition. after holding 'that the adoption was proved and it was valid, the trial judge came to the conclusion, even after noticing the decision of the supreme court in sawanram v. kalawanthi, : [1967]3scr687 , that on the death of venkappagowda, ramannagowda was the only coparcener and the entire properties vested in him since the adoption had taken place on 24-11-1972 after the hindu adoptions and maintenance act, 1956 came into force. therefore, the adopted son could not divest the properties vested in ramannagowda. on this reasoning, the learned judge rejected the prayer for partition. however, -he awarded maintenance at the rate of rs. 250/- per month to the plaintiffs from november,1972, reserving liberty to the parties to have the amount of maintenance either reduced or enhanced according to the circumstances in which they would be placed.5. in this appeal the plaintiffs have also filed cross-objections. according to them the learned trial judge has committed an error of law in rejecting their prayer for partition on the ground that there was vesting.6. having regard to the contentions raised on both the sides, the following points arise, for consideration:1) whether the first plaintiff was validly adopted by the second plaintiff on 24-11-1 1972 to her husband? 2) if the first point is answered in the affirmative, whether plaintiffs 1 and 2 would be entitled to a share in the suit properties; and if so, what would be the share of plaintiffs 1 and 2 in the joint family properties? 3) whether the suit schedule properties mentioned in schedules b and c are the joint family properties? 4) whether all the properties mentioned in b and c schedules are proved to be joint family properties, and if so whether all of them are available for partition? 5) whether the decree as to maintenance is required to be maintained? 6) what order? 7.1 point no. i in this case the adoption is evidenced by a registered deed of adoption produced as ex. p. 1 dt. 24-11-1972. it. is executed by the person (plaintiff 2) who has taken the first plaintiff in adoption and also by -the parents of the first plaintiff who have given him in adoption. thus it satisfies all the requirements of s. 16 of the hindu, adoptions and maintenance act,. 1956 (hereinafter referred to as the act). therefore the court shall have to presume that the adoption has been made in compliance wit the provisions of the act unless it is disproved. in -this case apart from proving the adoption deed, the plaintiffs have also examined the natural father of the first plaintiff and also the adoptive mother and the attestor. their evidence is not shaken in cross-examination. they have specifically stated that there was a giving and taking ceremony of the first plaintiff in adoption and all the ceremonies were held in accordance with the customs of the community. there is no evidence to rebut the presumption arising out of a registered deed of adoption executed in accordance with the provisions of s. 16 of the act. it is also not brought to our notice that the adoption contravenes any of the provisions contained in chapter 11 of the act.7.2 however, in this regard the contention of sri gopal learned counsel for the appellants, is that the 1st plaintiff was taken in adoption by the 2nd plaintiff not to her husband venkappagowda but to herself, therefore, the 2nd plaintiff cannot be considered to be adopted son of venkappa gowda. a reading of the deed of adoptions (ex. p. 1) makes it clear that plaintiff no. 2 adopted the first plaintiff to her husband only with a view to continue the lineage of her husband. further, when a hindu widow adopts she normally adopts to her husband unless otherwise it is specifically mentioned the deed of adoption. no such recital is contained in the adoption deed to lend support to the contention that plaintiff no. 2 adopted ,the 1st plaintiff to herself and not to her husband. therefore, it is not possible to accept the contention of sri gopal that the adoption of plaintiff no. i by plaintiff no. 2 was not to her husband but to herself. in this regard it is also relevant to notice the observations made by the supreme court in smt.sitabai v. ramachandra, : [1970]2scr1 :...... when a widow or an unmarried woman adopts a child - any husband she marries subsequent to adoption becomes, the step-father of the adopted child. the scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. in other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. the other collateral relations of the husband would be connected with the child through that deceased husband of the widow. for instance, the husband's brother would necessarily be the uncle of the adopted child. the daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. it is true that s. 14 of the act does not expressly state that the child adopted by the widow. but it is a necessary implication of ss. 21 and 14 of the act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. it is for this reason that we find in sub-sec.(4) of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the 'step-father' of the adopted child. the true effect and interpretation of ss. 11 and 12 of act no.lxxviii of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. in other words, the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses...... (underlining by us) even in savan ram's case air 1967 sc 1767, a similar view was expressed. (see paras 7,8 and 9). thus the contention of sri. gopal is devoid of merit. it is accordingly rejected. we hold that the adoption is proved and it is valid. we also further hold that plaintiff-1 was adopted to the husband of plaintiff no.2, accordingly point no.1 is answered in the affirmative and in favor of the plaintiffs.8.1 point no:2: - this point need not detain us for long having regard to the aforesaid pronouncement of the supreme court in smt. sitabai's case : [1970]2scr1 . when on adoption the adopted child becomes a member of the adoptive family and all ties of the child in the family of his birth become completely severed and those re all replaced by those created by the adoption in the adoptive family, necessarily it follows that the plaintiffs i and 2 would be entitled to the share which the adoptive father, if he were to be alive would have been entitled to. the question of vesting and divesting does not arise as the joint family has continued and the properties are also continued to be joint family properties.8.2 learned trial judge has rejected the prayer for partition made by the plaintiffs on the ground that the husband of the 2nd plaintiff died before the coming into force of the act and the adoption took place after the act came into force. learned trial judge has proceeded on the basis that on the death of venkappa gowda the joint family properties came to vest in the sole surviving coparcerner, namely, defendant no. 1 and the adoption having taken place on 24-11-72 the adopted son could not divest the 1st defendant from the properties which are vested in him. therefore, neither the 1st plaintiff nor the 2nd plaintiff is entitled to a share in the suit properties. on the basis of this reasoning learned trial judge has refused to grant a decree for partition but has only passed a decree for maintenance . awarding maintenance to plaintiffs 1 and 2 at the rate of rs. 250/- per month during the lifetime of both the plaintiffs. the learned trial judge has proceeded on a wrong footing that on the death of venkappa gowda the property came to be vested in defendant i as a sole surviving coparcener. in smt. sitabai's case : [1970]2scr1 the supreme court has held as follows : ...... that under the hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint, family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess.........it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property'-of the undivided family the basis of-the,-decision was that the property. which was the joint family property of the hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcener unit to a single individual.' the character of the property viz., that it was the joint property of a hindu undivided family, remained the same. after the death of one of the coparceners the joint family property continued to retain its character in the hands of the sole surviving coparcener as the widow - of the deceased coparcener was still alive and continued to enjoy the right of maintenance out of the joint family properties.' the aforesaid decision squarely applies to the facts of the present case. as it is already pointed out, the original propositus was one harubyle sanne gowda. he had four sons : obaiah, ujjinanna, venkappa gowda and ramanna gowda. the branches of obaiah and ujjinanna became extinct as they died unmarried. venkappa gowda expired when the family was joint leaving behind plaintiff no. 2 as his widow. even though the coparcener was reduced to a single unit i.e.' defendant no. i alone the character of the properties being joint family properties did not disappear as there was a widow of a deceased coparcener-in the family, namely, plaintiff no. 2, who had the legal right to bring a coparcener into the family by way of adoption. in addition to this it is also relevant to notice that the parties are from old mysore area, and the properties are situated in old mysore area. at the time when the husband of the second plaintiff died in or about the year 1940, the mysore hindu law women's rights act (act no. 10/33) was in force. according to cl (d) of sub-sec.(l) of s. 8 of that act a widow of a deceased brother is entitled to a share in the joint family properties to an extent of one- half to which her husband was entitled to. further, such a widow had alright to seek partition under that act. this position is no more res integra as it has been decided by the supreme court while considering the provisions of the very mysore act l&, of 33 in nagendra prasad v.kempananjamma, air 1%8 sc 209. that being so, the learned trial judge was in error in holding that the suit properties came to be vested in the sole surviving coparcener i.e.,defendant 1 and lost the character of joint family properties on the death of venkappa gowda.8.3 accordingly point no. 2 is answered as follows: -plaintiffs 1 and 2 are entitled to a share in the joint family properties equivalent to the share which the husband of plaintiff no. 2 would have been entitled to if he were to be alive.9.1 . point no. 3 in the plaint the plaintiffs have specifically stated that the properties mentioned in b and c schedules are the joint family properties. in their written statement the defendants have not specifically denied that the properties mentioned in b and c schedules are the joint family properties however, a specific stand is taken in respect of certain items mentioned in b and c schedules. in respect of b schedule it is specifically contended as follows in paragraphs 7 and 8 -of the written statement :'the plaintiffs have not given the details of the 'b' schedule properties also accurately. the defendants are not in possession of any vacant sites detailed as items nos. 27 and 28 in the plaint 'b' schedule. t he house in which the defendants are living was built by the l st defendant out of his separate funds in the year 1960. and the said property is not the joint family property of the parties. the plaintiffs have not given the boundaries and the other details to the house premises detailed in- plaint '13' schedule at items 22 to 26. the dwelling house, the cottage and the cooli line are all in one place and part of the same premises. the plaintiffs have not given the extent of s. no. 199 (item no. 16 of the plaint 'b' schedule), correctly. the extent of item no. 16 is 1-05 acres and not 1-15 acres. an extent of 0-27 guntas out of item no. 1 of 'b' schedule-and an - extent of 026 guntas out of item no. 12 of 'b' schedule is not the joint family property of the parties. those two items have been purchased by the 4th defendant manjunatha under registered sale deed dated 18-4-1970 and he had paid the consideration borrowing the same from his uncles.' 9.2 with regard to other items also it is stated that out of item no. 4 of the plaint 'b' schedule, an extent of 2-25 acres is cultivated by the tenant kumaranna gowda; that the entire item no. 2 and an extent ofo-115 guntas garden out of item no. 16 (s. no.'198) is in the cultivation of one puttanaika as a tenant; that one dogra has been cultivating 2-11 acres of wet land as a tenant; that the said dogra is also cultivating 0.30 guntas out of item no. 17, 0-03 guntas out of item no. 13, 0-20 guntas out of item no. 17, 0-13 guntas out of item no. 18 and the entire item no. 19 of 'b' schedule. therefore, it is averred that these properties are not available for partition being in the possession of tenants. the evidence on record shows that the joint family possessed sufficient nucleus capable of yielding surplus income so as to enable the joint family to acquire other. properties. this is relevant with reference to items nos. i and 12 which are claimed as self-acquired properties of defendant no. 4.9-3. ex.d. 3 is the sale deed under which items nos. 1 and 12 are purchased in the name of defendant no. 4 manjunath. at the .time of purchase he was only 14 years old as mentioned in the sale deed itself. the plea in this regard is that these two items are purchased in the name of manjunath with the funds made available by his father-in-law. apart from the fact that defendant 4 was a minor at the time of purchase and had no other source of income and no separate source of income is revealed from the evidence on record. the, marriage of defendant 4 had not taken place at the time when items 1 and 12 were purchased under ex.d. 3. in view of positive evidence on record to show that the joint family possessed sufficient nucleus capable of yielding sufficient income and the father of defendant 4 was the kartha of the family and as such was in charge of the management 'of the joint family properties and the income there from, in the absence of evidence to show that the consideration for purchasing items 1 and 12 had flown 6om the source independent of and unconnected with, the joint family income it shall have to be presumed that items 1 and 12 must have been acquired with the aid of joint family funds only. this has not been rebutted by the defendants by adducing cogent evidence. hence it is held that items 1 and 12 are also the joint family properties.9-4. the contention that the particulars, of certain properties are not furnished by the plaintiffs in the v schedule is only stated to be rejected. we are satisfied that 'b' schedule contains full description of the properties. therefore, it is not possible to hold that the plaintiffs have not given the details of the properties mentioned in the 'b' schedule.9-5. however, with regard to items nos. 27 and 28 which are the vacant sites it is claimed by the defendants that they are not in their possession. the 1st defendant as it is already pointed out is the kartha of the joint family.' 'except asserting that they are not in his possession he has neither stated as to w6o is in possession of these properties, nor any evidence is adduced before the trial court to show as to who is in possession of these properties and if so in what capacity those persons are in possession of these properties and whether title to these properties is lost. however, it is not denied that these two items of properties are the joint family properties. the only plea is that the defendants are not in possession of these properties. in the absence of any evidence to show that these two properties are in possession of third parties it. is not possible to hold -that these two properties are not with the defendants and are not available for partition.9-6. the next contention of the defendants is that items 22 to 26, viz., mangalore tiled dwelling house v.p.no. 321, mangalore tiled cattle shed v.p.no. 327, mangalore tiled coolie line v.p.no. 328, thatched house v.p.no. 317 and thatched, house in bhandigadipete v.p.no. 206 formed one property and they are not different, properties and they are in one fine. the case, of the 1st defendant in this regard is that these constructions described in items 22 to 26 were put up by him out of his separate funds in the year 1960. therefore the structures are not joint family properties. admittedly the sites on which these structures are put up are the joint family properties. however, the structures alone are claimed to have been put up by the separate funds of the 1st defendant. but there is no evidence to, show as to what was. the source of separate income of the 1st defendant. he is the kartha of the joint family and he is in charge of the 'finances and the valuable properties of the joint family yielding sufficient income. in the absence of any specific evidence that these structures were put up by the separate funds of the 1st defendant it is not possible to hold that the structures comprised in item's 22 to 26 are not joint family properties but are self-acquired properties of the ,defendants. hence this contention is negatived consequently, it is held that all the immovable properties described in 'b' schedule are the joint family properties.9-7. 'c' schedule consists of movables. it is not possible to appreciate as to how the trial judge has been able to hold that the 'c' schedule properties are proved to be the joint family properties. no. inventory has been taken and there is no, evidence to show that these movables are in existence and are purchased out of the joint family funds. shri kadidal manjappa learned counsel appearing for the second plaintiff is not in a position to convince -the court that movables are proved to exist and they belong to the joint family. therefore the finding of the trial court that the movables mentioned in 'c 'schedule are the joint family properties is liable to be set aside. it is accordingly set aside and it is held that the movables described in 'c' schedule are not proved to be either in existence or belonging to the joint family.9-8. accordingly point no. 3 answered as follows : movable properties described in 'b' schedule are joint family properties. movables described in 'c' schedule are neither proved to exist nor it is proved that. they are joint family properties.10-1. point no. 4 : - with regard to certain landed properties, namely, items nos. 2, 4, 12, 16, 18 and 19 it is contended that they are not available for partition because they were in possession of the tenants as on the date of coming into force of the karnataka land reforms act as amended by karnataka act 1/74; therefore they stood vested in the state government, as such they cannot be considered as available for partition.10-2. we have been taken through the documentary evidence, viz., the extracts- of records of rights and the index of lands. from these records it is noticed that item no. 2 bearing survey number 223 is a wet land measuring 2 acres 1 gunta. extract of records of rights shows that the land has -been in the personal cultivation of the 1st defendant and is not in possession of third parties as tenants. that being so the contention of the defendants that item no. 2 is not available for partition being in possession of the tenant cannot be accepted. it is accordingly held that item 2 is available for partition.10-3. item no. 4 is survey. number 217. it is a wet land, and it measures 6 acres 38 guntas. the records produced in this regard do show that only an extent of 2 acres 28 guntas is in possession of the tenant by name kumaranna gowda. it is also not disputed by the plaintiffs inasmuch as the 2nd plaintiff has admitted this in her evidence. but it is not known whether kumaranna gowda had filed form no. 7 under the karnataka land reforms act and had obtained occupancy right. however, the trial judge has held that the entire item no. 4 is in possession of the tenant kumaranna gowda, but there is no evidence on record to support such a conclusion. on the contrary, the evidence on record only establishe's that kumarann4 gowda has been in possession as tenant of an extent of 2 acres 28 guntas in survey number 217; not the entire extent. accordingly, it is held that in survey number 217 only 4 acres 10 guntas is available for partition. in respect of other portion of the compensation that is payable under the provisions of the karnataka land reforms act is liable to be shared by the plaintiffs according to their shares.10-4. item no. 12 is survey number 201. it is also a wet land and it measures l acre 17 guntas. this land has been excluded by the learned trial judge on the ground that it is in ,possession of the tenant. but the record of rights pertaining to this land and also the index of lands do show that this land has been under the personal cultivation of the first defendant. therefore, it cannot be held to be in possession of the tenant and as such not available for partition. accordingly it is held that exclusion of this land from partition is not justified therefore, it is held that survey number 201 is available for partition.10-5. item no. 16 is survey number 198. it is a bagayath land and it measures 1 acre 15 guntas. in respect of an extent of 15 guntas the records pertaining to, this land produced in the suit show that one putta naika has been in possession as a tenant. however, the learned trial judge has excluded the entire extent of this land from partition. as it is not disputed that the aforesaid putta naika is in :possession of 15 guntas of land in survey number 198, that portion has to be excluded from partition as not being available for partition. thus only an extent of 1 acre is available for partition in survey number 198 and in respect of the remaining portion the plaintiffs are entitled to share the compensation that may be paid under the provisions of the arnataka land reforms, act.10-6. item no. 18 is survey number 196., it is also a wet land and it measures 1 acre 4 guntas. out of this an extent of 13 guntas is in possession of a tenant by name dogra. extract of record of rights and the index of lands produced in the suit do support this and the second plaintiff also has not disputed about this. therefore only an extent of 13 guntas in ,survey number 196 is not available for partition. excluding 13 guntas the remaining 31 guntas is available for partition. in respect of 13 guntas the plaintiffs are entitled to share the compensation that may be awarded under the karnataka land reforms act along with: the defendants.10-7. item no. 19 is survey number 195 it is also a wet land and it measures 26 guntas. the entire extent is proved to have been in possession of the tenant by name dogra. this is also not disputed by the- plaintiffs. thus survey number 195 is not available for partition.10-8. for the reasons stated above point no. 4 is answered as follows : except the extent of properties which is in possession of the tenants and in respect of which specific findings are recorded in the preceding paragraphs the rest of the properties in 'b' schedule being the joint family properties are available for partition.11. point no. 5 : - the trial court has refused to pass a decree for partition and separate possession of the shares of the plaintiffs. however, it has awarded. maintenance. now we have held that the plaintiffs are entitled to a share in the suit 'properties and a preliminary decree for partition of the share of the plaintiffs has to be passed. as it is a known fact that by the time the final decree is passed and the partition takes place by metes and bounds, many years pass. in the meanwhile, the plaintiffs do not have anything to maintain themselves. all,; the, properties are in the possession of the defendants. when the defendants are in! possession and enjoyment of the property allottable to the share of the plaintiffs as heirs of the deceased coparcener,. they - the defendants are liable to pay maintenance and the plaintiffs are entitled to be maintained 1 from and out of the income from the suit' properties. under these circumstances, it is necessary to allow the decree of the trial! court to stand and confirm it in so far it :relates to awarding of maintenance to the plaintiffs at the rate of rs. 250/- per month which the defendants have to pay until the partition takes place by metes and bounds. after completion of the partition, the plaintiffs will not be entitled to this.- amount and the amount paid shall be adjusted in the mesne profits that will be determined as payable by the defendants to the plaintiffs. point no. 5 is answered accordingly.12. for the reasons stated above the appeal is dismissed. the cross-objections are allowed to the extent mentioned hereinafter. the judgment and decree of the trial court in so far it dismisses the suit for partition and separate possession of the share of the plaintiffs are set aside- the suit of the plaintiffs is decreed in the following terms:1) the plaintiffs are entitled to half share in the joint family properties described in 'b' schedule excepting the following portions which are held to be in possession of the tenants : (a) an extent of 2 (two) acres 28 guntas in s.no. 20 (a portion of item no. -4). (b) an extent of 15 (fifteen) guntas only in s.no. 198 (a portion of item no. 116). (c) an extent of 13 (thirteen) guntas only in, s. no. 196 (a portion of item no. 18). (d) item no. 19 - s.no. 195 measuring 26 guntas. in respect of the aforesaid excluded portions ,,the plaintiffs are entitled to share the compensation to the extent of half that may be awarded under the provisions of the karnataka land reforms act. 2) there shall be an enquiry into. future mesne profits under 0. 20, r. 18, c.p.c. from the date of suit. 3) the decree of the trial court awarding maintenance at the rate of rs. 250/- per month, is confirmed and it shall be operative till. actual partition takes place by metes. and bounds and th6 plaintiffs are put in possession, of their share, subject to a further condition that the amount so paid to the plaintiffs shall be adjustable in the future mesne profits which, the defendants have to pay to the plaintiffs 'and which has to be determined as per para 2 of this decree. 4) the division of the properties comprising of agricultural lands shall be made in accordance with the mandate f this decree by the deputy commissioner or his gazetted assistant as per s. 54 of the c.p.c. the house properties shall be divided through a commissioner appointed by the court. 5) as the plaintiffs have been permitted to, prosecute the suit as indigent persons and as they have succeeded the court-fee payable on the suit and the cross-objections shall be the first charge on the suit properties that would be allotted to their shares and be recovered by the deputy commissioner of the district. parties to bear their own costs throughout.13. order accordingly.
Judgment:

Swami, J.

1. This appeal by Defendants 1to11 is preferred against the judgment and decree dt. 22-11-1975 passed by the Civil Judge, Chikmagalur, in O.S. No. 42 of 1974. Respondents 1 and 2 are the plaintiffs. In this judgment, Respondents I and 2 would be; referred to as Plaintiffs 1 and 2 and the appellants as Defendants 1 to 11 respectively.

2. Plaintiff-1 is the adopted son of Plaintiff- 2. They filed the suit in 0. S. No. 42, of 1974 for partition and separate possession of half share half share 'B' and 'C' schedule properties and for accounts of management by Defendant-1 and also for a decree for past and future maintenance at the rate of Rs. 3,000/- per year and for an enquiry into future mesne profits also.

3. The relationship of the parties is not in dispute. One Harubyle Sannegowda was the original propositus. He had 4 sons by name Obaiah, Ujinanna's, Venkappagowda and Ramanna Gowda. Obaiah and Ujinanna's branches became extinct as they died unmarried and issueless. Venkappagowda died in the year 1940 leaving behind his widow who is plaintiff-2. Defendant-I is Ranianna Gowda and Defendant-2 is his wife. Defendants 3 to 11 are their children. Plaintiff was taken in adoption by Plaintiff-2 under a registered Deed of Adoption marked as Exhibit P.1 The suit was instituted on 22-3-1974 for the aforesaid reliefs.

4. In the light of the pleadings of the parties the trial court framed as many as 15 issues. It held that the adoption of Plaintiff-I was proved and it was valid. It also held that the immoveable properties mentioned in V Schedule and moveable properties mentioned in Schedule 'C' were joint family properties. However, it further held that Items 2, 4, 12, 161 18 and 19 being in possession of tenants were not available for partition. Accordingly it excluded them from partition. After holding 'that the adoption was proved and it was valid, the trial Judge came to the conclusion, even after noticing the decision of the Supreme Court in Sawanram v. Kalawanthi, : [1967]3SCR687 , that on the death of Venkappagowda, Ramannagowda was the only coparcener and the entire properties vested in him since the adoption had taken place on 24-11-1972 after the Hindu Adoptions and Maintenance Act, 1956 came into force. Therefore, the adopted son could not divest the properties vested in Ramannagowda. On this reasoning, the learned Judge rejected the prayer for partition. However, -he awarded maintenance at the rate of Rs. 250/- per month to the plaintiffs from November,1972, reserving liberty to the parties to have the amount of maintenance either reduced or enhanced according to the circumstances in which they would be placed.

5. In this appeal the plaintiffs have also filed Cross-Objections. According to them the learned trial Judge has committed an error of law in rejecting their prayer for partition on the ground that there was vesting.

6. Having regard to the contentions raised on both the sides, the following points arise, for consideration:

1) Whether the first plaintiff was validly adopted by the second plaintiff on 24-11-1 1972 to her husband?

2) If the first point is answered in the affirmative, whether Plaintiffs 1 and 2 would be entitled to a share in the suit properties; and if so, what would be the share of Plaintiffs 1 and 2 in the joint family properties?

3) Whether the suit schedule properties mentioned in Schedules B and C are the joint family properties?

4) Whether all the properties mentioned in B and C Schedules are proved to be joint family properties, and if so whether all of them are available for partition?

5) Whether the decree as to maintenance is required to be maintained?

6) What order?

7.1 Point No. I In this case the adoption is evidenced by a registered deed of adoption produced as Ex. P. 1 dt. 24-11-1972. It. is executed by the person (Plaintiff 2) who has taken the first plaintiff in adoption and also by -the parents of the first plaintiff who have given him in adoption. Thus it satisfies all the requirements of S. 16 of the Hindu, Adoptions and Maintenance Act,. 1956 (hereinafter referred to as the Act). Therefore the Court shall have to presume that the adoption has been made in compliance wit the provisions of the Act unless it is disproved. In -this case apart from proving the adoption deed, the plaintiffs have also examined the natural father of the first plaintiff and also the adoptive mother and the attestor. Their evidence is not shaken in cross-examination. They have specifically stated that there was a giving and taking ceremony of the first plaintiff in adoption and all the ceremonies were held in accordance with the customs of the community. There is no evidence to rebut the presumption arising out of a registered deed of adoption executed in accordance with the provisions of S. 16 of the Act. It is also not brought to our notice that the adoption contravenes any of the provisions contained in chapter 11 of the Act.

7.2 However, in this regard the contention of Sri Gopal learned counsel for the appellants, is that the 1st plaintiff was taken in adoption by the 2nd plaintiff not to her husband Venkappagowda but to herself, therefore, the 2nd plaintiff cannot be considered to be adopted son of Venkappa Gowda. A reading of the deed of adoptions (Ex. P. 1) makes it clear that plaintiff No. 2 adopted the first plaintiff to her husband only with a view to continue the lineage of her husband. Further, when a Hindu widow adopts she normally adopts to her husband unless otherwise it is specifically mentioned the deed of adoption. No such recital is contained in the adoption deed to lend support to the contention that plaintiff No. 2 adopted ,the 1st plaintiff to herself and not to her husband. Therefore, it is not possible to accept the contention of Sri Gopal that the adoption of plaintiff No. I by plaintiff No. 2 was not to her husband but to herself. In this regard it is also relevant to notice the observations made by the Supreme Court in Smt.Sitabai v. Ramachandra, : [1970]2SCR1 :...... When a widow or an unmarried woman adopts a child - any husband she marries subsequent to adoption becomes, the step-father of the adopted child. The scheme of Ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that S. 14 of the Act does not expressly state that the child adopted by the widow. But it is a necessary implication of Ss. 21 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-sec.(4) of S. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the 'step-father' of the adopted child. The true effect and interpretation of Ss. 11 and 12 of Act No.LXXVIII of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words, the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses......

(underlining by us)

Even in Savan Ram's case AIR 1967 SC 1767, a similar view was expressed. (See paras 7,8 and 9). Thus the contention of Sri. Gopal is devoid of merit. It is accordingly rejected. We hold that the adoption is proved and it is valid. We also further hold that plaintiff-1 was adopted to the husband of plaintiff No.2, Accordingly point No.1 is answered in the affirmative and in favor of the plaintiffs.

8.1 Point No:2: - This point need not detain us for long having regard to the aforesaid pronouncement of the Supreme Court in Smt. Sitabai's case : [1970]2SCR1 . When on adoption the adopted child becomes a member of the adoptive family and all ties of the child in the family of his birth become completely severed and those re all replaced by those created by the adoption in the adoptive family, necessarily it follows that the plaintiffs I and 2 would be entitled to the share which the adoptive father, if he were to be alive would have been entitled to. The question of vesting and divesting does not arise as the joint family has continued and the properties are also continued to be joint family properties.

8.2 Learned trial Judge has rejected the prayer for partition made by the plaintiffs on the ground that the husband of the 2nd plaintiff died before the coming into force of the Act and the adoption took place after the Act came into force. Learned trial Judge has proceeded on the basis that on the death of Venkappa Gowda the joint family properties came to vest in the sole surviving coparcerner, namely, defendant No. 1 and the adoption having taken place on 24-11-72 the adopted son could not divest the 1st defendant from the properties which are vested in him. Therefore, neither the 1st plaintiff nor the 2nd plaintiff is entitled to a share in the suit properties. On the basis of this reasoning learned trial Judge has refused to grant a decree for partition but has only passed a decree for maintenance . awarding maintenance to plaintiffs 1 and 2 at the rate of Rs. 250/- per month during the lifetime of both the plaintiffs. The learned trial Judge has proceeded on a wrong footing that on the death of Venkappa Gowda the property came to be vested in defendant I as a sole surviving coparcener. In Smt. Sitabai's case : [1970]2SCR1 the Supreme Court has held as follows : ...... that under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint, family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess.........it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property'-of the undivided family The basis of-the,-decision was that the property. Which was the joint family property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcener unit to a single individual.' The character of the property viz., that it was the joint property of a Hindu undivided family, remained the same. After the death of one of the coparceners the joint family property continued to retain its character in the hands of the sole surviving coparcener as the widow - of the deceased coparcener was still alive and continued to enjoy the right of maintenance out of the joint family properties.'

The aforesaid decision squarely applies to the facts of the present case. As it is already pointed out, the original propositus was one Harubyle Sanne Gowda. He had four sons : Obaiah, Ujjinanna, Venkappa Gowda and Ramanna Gowda. The branches of Obaiah and Ujjinanna became extinct as they died unmarried. Venkappa Gowda expired when the family was joint leaving behind plaintiff No. 2 as his widow. Even though the coparcener was reduced to a single unit i.e.' defendant No. I alone the character of the properties being joint family properties did not disappear as there was a widow of a deceased coparcener-in the family, namely, plaintiff No. 2, who had the legal right to bring a coparcener into the family by way of adoption. In addition to this it is also relevant to notice that the parties are from old Mysore area, and the properties are situated in old Mysore area. At the time when the husband of the second plaintiff died in or about the year 1940, the Mysore Hindu Law Women's Rights Act (Act No. 10/33) was in force. According to CL (d) of sub-sec.(l) of S. 8 of that Act a widow of a deceased brother is entitled to a share in the joint family properties to an extent of one- half to which her husband was entitled to. Further, such a widow had alright to seek partition under that Act. This position is no more res integra as it has been decided by the Supreme Court while considering the provisions of the very Mysore Act l&, of 33 in Nagendra Prasad v.Kempananjamma, AIR 1%8 SC 209. That being so, the learned trial Judge was in error in holding that the suit properties came to be vested in the sole surviving coparcener i.e.,defendant 1 and lost the character of joint family properties on the death of Venkappa Gowda.

8.3 Accordingly point No. 2 is answered as follows: -

Plaintiffs 1 and 2 are entitled to a share in the joint family properties equivalent to the share which the husband of plaintiff No. 2 would have been entitled to if he were to be alive.

9.1 . Point No. 3 In the plaint the plaintiffs have specifically stated that the properties mentioned in B and C schedules are the joint family properties. In their written statement the defendants have not specifically denied that the properties mentioned in B and C schedules are the joint family properties However, a specific stand is taken in respect of certain items mentioned in B and C schedules. In respect of B schedule it is specifically contended as follows in paragraphs 7 and 8 -of the written statement :

'The plaintiffs have not given the details of the 'B' schedule properties also accurately. The defendants are not in possession of any vacant sites detailed as items Nos. 27 and 28 in the plaint 'B' schedule. T he house in which the defendants are living was built by the l st defendant out of his separate funds in the year 1960. and the said property is not the joint family property of the parties. The plaintiffs have not given the boundaries and the other details to the house premises detailed in- plaint '13' schedule at items 22 to 26. The dwelling house, the cottage and the cooli line are all in one place and part of the same premises. The plaintiffs have not given the extent of S. No. 199 (item No. 16 of the plaint 'B' schedule), correctly. The extent of item No. 16 is 1-05 acres and not 1-15 acres.

An extent of 0-27 guntas out of item No. 1 of 'B' schedule-and an - extent of 026 guntas out of item No. 12 of 'B' schedule is not the joint family property of the parties. Those two items have been purchased by the 4th defendant Manjunatha under registered sale deed dated 18-4-1970 and he had paid the consideration borrowing the same from his uncles.'

9.2 With regard to other items also it is stated that out of item No. 4 of the plaint 'B' schedule, an extent of 2-25 acres is cultivated by the tenant Kumaranna Gowda; that the entire item No. 2 and an extent ofO-115 guntas garden out of item No. 16 (S. No.'198) is in the cultivation of one Puttanaika as a tenant; that one Dogra has been cultivating 2-11 acres of wet land as a tenant; that the said Dogra is also cultivating 0.30 guntas out of item No. 17, 0-03 guntas out of item No. 13, 0-20 guntas out of item No. 17, 0-13 guntas out of item No. 18 and the entire item No. 19 of 'B' schedule. Therefore, it is averred that these properties are not available for partition being in the possession of tenants. The evidence on record shows that the joint family possessed sufficient nucleus capable of yielding surplus income so as to enable the joint family to acquire other. properties. This is relevant with reference to items Nos. I and 12 which are claimed as self-acquired properties of defendant No. 4.

9-3. Ex.D. 3 is the sale deed under which items Nos. 1 and 12 are purchased in the name of defendant No. 4 Manjunath. At the .time of purchase he was only 14 years old as mentioned in the sale deed itself. The plea in this regard is that these two items are purchased in the name of Manjunath with the funds made available by his father-in-law. Apart from the fact that defendant 4 was a minor at the time of purchase and had no other source of income and no separate source of income is revealed from the evidence on record. The, marriage of defendant 4 had not taken place at the time when items 1 and 12 were purchased under Ex.D. 3. In view of positive evidence on record to show that the joint family possessed sufficient nucleus capable of yielding sufficient income and the father of defendant 4 was the kartha of the family and as such was in charge of the management 'of the joint family properties and the income there from, in the absence of evidence to show that the consideration for purchasing items 1 and 12 had flown 6om the source independent of and unconnected with, the joint family income it shall have to be presumed that items 1 and 12 must have been acquired with the aid of joint family funds only. This has not been rebutted by the defendants by adducing cogent evidence. Hence it is held that items 1 and 12 are also the joint family properties.

9-4. The contention that the particulars, of certain properties are not furnished by the plaintiffs in the V schedule is only stated to be rejected. We are satisfied that 'B' schedule contains full description of the properties. Therefore, it is not possible to hold that the plaintiffs have not given the details of the properties mentioned in the 'B' schedule.

9-5. However, with regard to items Nos. 27 and 28 which are the vacant sites it is claimed by the defendants that they are not in their possession. The 1st defendant as it is already pointed out is the kartha of the joint family.' 'Except asserting that they are not in his possession he has neither stated as to w6o is in possession of these properties, nor any evidence is adduced before the trial Court to show as to who is in possession of these properties and if so in what capacity those persons are in possession of these properties and whether title to these properties is lost. However, it is not denied that these two items of properties are the joint family properties. The only plea is that the defendants are not in possession of these properties. In the absence of any evidence to show that these two properties are in possession of third parties it. is not possible to hold -that these two properties are not with the defendants and are not available for partition.

9-6. The next contention of the defendants is that items 22 to 26, viz., Mangalore tiled dwelling house V.P.No. 321, Mangalore tiled cattle shed V.P.No. 327, Mangalore tiled coolie line V.P.No. 328, thatched house V.P.No. 317 and thatched, house in Bhandigadipete V.P.No. 206 formed one property and they are not different, properties and they are in one fine. The case, of the 1st defendant in this regard is that these constructions described in items 22 to 26 were put up by him out of his separate funds in the year 1960. Therefore the structures are not joint family properties. Admittedly the sites on which these structures are put up are the joint family properties. However, the structures alone are claimed to have been put up by the separate funds of the 1st defendant. But there is no evidence to, show as to what was. the source of separate income of the 1st defendant. He is the kartha of the joint family and he is in charge of the 'finances and the valuable properties of the joint family yielding sufficient income. In the absence of any specific evidence that these structures were put up by the separate funds of the 1st defendant it is not possible to hold that the structures comprised in item's 22 to 26 are not joint family properties but are self-acquired properties of the ,defendants. Hence this contention is negatived Consequently, it is held that all the immovable properties described in 'B' schedule are the joint family properties.

9-7. 'C' schedule consists of movables. It is not possible to appreciate as to how the trial Judge has been able to hold that the 'C' schedule properties are proved to be the joint family properties. No. inventory has been taken and there is no, evidence to show that these movables are in existence and are purchased out of the joint family funds. Shri Kadidal Manjappa learned counsel appearing for the second plaintiff is not in a position to convince -the Court that movables are proved to exist and they belong to the joint family. Therefore the finding of the trial Court that the movables mentioned in 'C 'schedule are the joint family properties is liable to be set aside. It is accordingly set aside and it is held that the movables described in 'C' schedule are not proved to be either in existence or belonging to the joint family.

9-8. Accordingly point No. 3 answered as follows : Movable properties described in 'B' schedule are joint family properties. Movables described in 'C' schedule are neither proved to exist nor it is proved that. they are joint family properties.

10-1. Point No. 4 : - With regard to certain landed properties, namely, items Nos. 2, 4, 12, 16, 18 and 19 it is contended that they are not available for partition because they were in possession of the tenants as on the date of coming into force of the Karnataka Land Reforms Act as amended by Karnataka Act 1/74; therefore they stood vested in the State Government, as such they cannot be considered as available for partition.

10-2. We have been taken through the documentary evidence, viz., the extracts- of Records of Rights and the Index of Lands. From these records it is noticed that item No. 2 bearing survey number 223 is a wet land measuring 2 acres 1 gunta. Extract of Records of Rights shows that the land has -been in the personal cultivation of the 1st defendant and is not in possession of third parties as tenants. That being so the contention of the defendants that item No. 2 is not available for partition being in possession of the tenant cannot be accepted. It is accordingly held that item 2 is available for partition.

10-3. Item No. 4 is survey. number 217. It is a wet land, and it measures 6 acres 38 guntas. The records produced in this regard do show that only an extent of 2 acres 28 guntas is in possession of the tenant by name Kumaranna Gowda. It is also not disputed by the plaintiffs inasmuch as the 2nd plaintiff has admitted this in her evidence. But it is not known whether Kumaranna Gowda had filed Form No. 7 under the Karnataka Land Reforms Act and had obtained occupancy right. However, the trial Judge has held that the entire item No. 4 is in possession of the tenant Kumaranna Gowda, but there is no evidence on record to support such a conclusion. On the contrary, the evidence on record only establishe's that Kumarann4 Gowda has been in possession as tenant of an extent of 2 acres 28 guntas in survey number 217; not the entire extent. Accordingly, it is held that in survey number 217 only 4 acres 10 guntas is available for partition. In respect of other portion of the compensation that is payable under the provisions of the Karnataka Land Reforms Act is liable to be shared by the plaintiffs according to their shares.

10-4. Item No. 12 is survey number 201. It is also a wet land and it measures l acre 17 guntas. This land has been excluded by the learned trial Judge on the ground that it is in ,possession of the tenant. But the record of rights pertaining to this land and also the Index of lands do show that this land has been under the personal cultivation of the first defendant. Therefore, it cannot be held to be in possession of the tenant and as such not available for partition. Accordingly it is held that exclusion of this land from partition is not justified Therefore, it is held that survey number 201 is available for partition.

10-5. Item No. 16 is survey number 198. It is a bagayath land and it measures 1 acre 15 guntas. In respect of an extent of 15 guntas the records pertaining to, this land produced in the suit show that one Putta Naika has been in possession as a tenant. However, the learned trial Judge has excluded the entire extent of this land from partition. As it is not disputed that the aforesaid Putta Naika is in :possession of 15 guntas of land in survey number 198, that portion has to be excluded from partition as not being available for partition. Thus only an extent of 1 acre is available for partition in survey number 198 and in respect of the remaining portion the plaintiffs are entitled to share the compensation that may be paid under the provisions of the arnataka Land Reforms, Act.

10-6. Item No. 18 is survey number 196., It is also a wet land and it measures 1 acre 4 guntas. Out of this an extent of 13 guntas is in possession of a tenant by name Dogra. Extract of Record of Rights and the Index of lands produced in the suit do support this and the second plaintiff also has not disputed about this. Therefore only an extent of 13 guntas in ,survey number 196 is not available for partition. Excluding 13 guntas the remaining 31 guntas is available for partition. In respect of 13 guntas the plaintiffs are entitled to share the compensation that may be awarded under the Karnataka Land Reforms Act along with: the defendants.

10-7. Item No. 19 is survey number 195 It is also a wet land and it measures 26 guntas. The entire extent is proved to have been in possession of the tenant by name Dogra. This is also not disputed by the- plaintiffs. Thus survey number 195 is not available for partition.

10-8. For the reasons stated above point No. 4 is answered as follows : Except the extent of properties which is in possession of the tenants and in respect of which specific findings are recorded in the preceding paragraphs the rest of the properties in 'B' schedule being the joint family properties are available for partition.

11. Point No. 5 : - The trial Court has refused to pass a decree for partition and separate possession of the shares of the plaintiffs. However, it has awarded. maintenance. Now we have held that the plaintiffs are entitled to a share in the suit 'properties and a preliminary decree for partition of the share of the plaintiffs has to be passed. As it is a known fact that by the time the final decree is passed and the partition takes place by metes and bounds, many years pass. In the meanwhile, the plaintiffs do not have anything to maintain themselves. All,; the, properties are in the possession of the defendants. When the defendants are in! possession and enjoyment of the property allottable to the share of the plaintiffs as heirs of the deceased coparcener,. they - the defendants are liable to pay maintenance and the plaintiffs are entitled to be maintained 1 from and out of the income from the suit' properties. Under these circumstances, it is necessary to allow the decree of the trial! Court to stand and confirm it in so far it :relates to awarding of maintenance to the plaintiffs at the rate of Rs. 250/- per month which the defendants have to pay until the partition takes place by metes and bounds. After completion of the partition, the plaintiffs will not be entitled to this.- amount and the amount paid shall be adjusted in the mesne profits that will be determined as payable by the defendants to the plaintiffs. Point No. 5 is answered accordingly.

12. For the reasons stated above the appeal is dismissed. The cross-objections are allowed to the extent mentioned hereinafter. The judgment and decree of the trial Court in so far it dismisses the suit for partition and separate possession of the share of the plaintiffs are set aside- The suit of the plaintiffs is decreed in the following terms:

1) The plaintiffs are entitled to half share in the joint family properties described in 'B' schedule excepting the following portions which are held to be in possession of the tenants :

(a) an extent of 2 (two) acres 28 guntas in S.No. 20 (a portion of item No. -4).

(b) an extent of 15 (fifteen) guntas only in S.No. 198 (a portion of item No. 116).

(c) an extent of 13 (thirteen) guntas only in, S. No. 196 (a portion of item No. 18).

(d) item No. 19 - S.No. 195 measuring 26 guntas.

In respect of the aforesaid excluded portions ,,the plaintiffs are entitled to share the compensation to the extent of half that may be awarded under the provisions of the Karnataka Land Reforms Act.

2) There shall be an enquiry into. Future mesne profits under 0. 20, R. 18, C.P.C. from the date of suit.

3) The decree of the trial Court awarding maintenance at the rate of Rs. 250/- per month, is confirmed and it shall be operative till. actual partition takes place by metes. and bounds and th6 plaintiffs are put in possession, of their share, subject to a further condition that the amount so paid to the plaintiffs shall be adjustable in the future mesne profits which, the defendants have to pay to the plaintiffs 'and which has to be determined as per para 2 of this decree.

4) The division of the properties comprising of agricultural lands shall be made in accordance with the mandate f this decree by the Deputy Commissioner or his Gazetted Assistant as per S. 54 of the C.P.C. The house properties shall be divided through a Commissioner appointed by the Court.

5) As the plaintiffs have been permitted to, prosecute the suit as indigent persons and as they have succeeded the court-fee payable on the suit and the cross-objections shall be the first charge on the suit properties that would be allotted to their shares and be recovered by the Deputy Commissioner of the District.

Parties to bear their own costs throughout.

13. Order accordingly.