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Judgment
D.V. Shylendra Kumar, J.—This Regular First Appeal under Section 96 of Code of Civil Procedure is by the defendants 1 to 4 in OS No 116 of 2003, on the file of Civil Judge (Sr Dn), Aland (originally numbered as OS No 378 of 2001, on the file of Addl Civil Judge (Sr Dn), Gulbarga, which had been later transferred to the court of Civil Judge (Sr Dn), At Aland and renumbered as OS No 116 of 2003), and directed against the judgment and decree dated 19-10-2005 passed in the suit, a suit for partition of joint family properties and the plaintiffs, numbering two - mother and her adopted son - together having claimed half share in the suit schedule properties and the suit having been decreed in terms of the prayer in the plaint, though some minor variations regarding the inter se sharing amongst the plaintiffs and the 19th defendant, who is the daughter of second plaintiff. For the sake of convenience, the parties will be referred to in their respective ranks in the suit.
Defendants 1 to 4, who had contested the suit and who are heirs of the brother of the husband of the second plaintiff, who had instituted the suit in her status as widow of one Chandanna Bhakare and defendants 1 to 4 being grandchildren of Revappa Bhakare - brother of Chandanna. Defendants 1 to 4 have contended that the judgment and decree passed by the trial court is not sustainable in law; that there have been errors of not only questions of law but also the manner in which evidence on record has been appreciated; that when there was basic dispute even with regard to the status of the second plaintiff to be the widow of Chandanna - a member of the joint family - and further dispute as regards the first plaintiff being the adopted son of second plaintiff and more so when the first plaintiff at the time of adoption in the year 2001, even as claimed by the plaintiffs, was much more than 15 years of age and therefore the trial court could not have accepted it as a valid adoption in the wake of the provisions of Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956 [for short, the Adoption Act]; that even when the plaintiffs were not entitled to any share at all in the joint family properties of Revappa and Chandanna, the trial court decreeing the suit is a grave error in law and therefore calls for interference, appeal is to be allowed and the suit dismissed etc.
Brief facts leading to filing of the suit, as per the plaint averments, are that: One Shivalingappa, who was the propositor of the family, had one daughter Kallawa and three sons - Sidram, Revanna and Chandanna; that the said propositor Shivalingappa died in the year 1910, his first son Sidram died in the year 1940 without any issues, daughter Kallawa had been married to Mallikarjun, who had two sons and daughter Neelabai; that the said Neelabai is the second plaintiff and had been given in marriage to Chandanna, after his first wife Chandawa deserted him and married another person namely Anneppa Mudukanna and had lived separately and after the marriage of Neelabai with Chandanna, they had a daughter by name Gurubai; that her husband Chandanna died in the year 1950 or 1954; that after the death of Chandanna, Neelabai continued to reside in the family house of Bhakare family and was being taken care of her brother-in-law Revanna - elder brother of Chandanna; that Revanna also died on 26-1-1993, whereafter Revappa''s son Shivasharanappa started troubling and harassing the second plaintiff Neelabai and ultimately driving her to seek shelter in her matrimonial house; that her daughter Gurubai had been given in marriage to 16th defendant Shankar - son of Kallawa; that the second plaintiff adopted the first plaintiff for continuation of the lineage etc., after observing necessary procedure in this regard; that the adoption took place on 10-6-2001 in the presence of relatives, elders in the family and a swamiji, at Nandagaon village in Tuljapur taluk of Maharashtra, the maternal home of Neelabai and thereafter in spite of the demands of plaintiffs for their legitimate share i.e. share of Chandanna in the joint family properties, defendants, particularly defendants 1 to 4, who were in the possession and vahivat of the properties did not oblige and therefore the suit was laid seeking for partition and separate possession of the plaintiffs'' share in the joint family properties.
The following family tree gives a better picture of the relationship of the parties as claimed by the plaintiffs:
There were as many as 19 defendants to the suit. Defendants 1 to 4 as described above, fifth defendant being daughter of first defendant, defendants 6 and 7 being daughters of Revappa i.e. sisters of first defendant, defendants 8 to 14 being children to Gurubai w/o Amruth - another sister of the first defendant; defendants 15 and 16 being sons of Kallawa i.e. brothers of second plaintiff; defendants 17 being daughter of second plaintiff Neelabai and Chandanna and 18th and 19th defendants being children of Thayavva w/o Revanasiddappa Ganapathi, who in turn is daughter of Sharanavva d/o first wife of Shivalingappa, the propositor.
While defendants 1 to 5 contested the suit claim and filed common written statement, defendants 16 and 17 supported the case of the plaintiffs and filed a separate written statement and in fact Gurubai while did not opposed the grant of a decree, sought for giving her whatever share she is legitimately entitled to.
Defendants 1 to 5 in the written statement in the first instance denied the relationship, pleading that the plaintiffs are not in any way related to the family of Bhakare, except Neelabai was the daughter of Kallawa, one daughter of Shivalingappa to his second wife, but Neelabai was never married to Chandanna and therefore she is not entitled to any share nor any person/s claiming under Neelabai or as a person taken in adoption by Neelabai i.e. first plaintiff, who is claimed to have taken in adoption by the second plaintiff and therefore pleaded that the plaintiffs have no manner of right, interest or title in any of the suit schedule properties and sought for dismissal of the suit with costs etc.
Contesting defendants has a safety valve also, pleaded that the prior partition had taken place between Revappa and the first defendant Shivasharanappa - father and son - during the year 1982; that assuming for argument''s sake that Chandanna had taken the first plaintiff in adoption in the year 2001, that cannot make any difference to the earlier partition and therefore the plaintiffs cannot lay claim to any of the suit schedule properties.
Contesting defendants also pleaded that even assuming that Neelabai had married Chandanna, Chandanna himself having died prior to the Hindu Succession Act, 1956 [for short, the Succession Act] and no partition having taken place during the lifetime of Chandanna, on his death, no right enured in favour of second plaintiff; that she was not possessed any properties of the family in her capacity as widow of a member of coparcenary and therefore she was not entitled to claim a share in the properties by filing a suit in the year 2001 and therefore also the suit is liable to be dismissed.
Defendants 16 and 17 in their separate common written statement fully supported the case of the plaintiffs. All averments in the plaint were admitted and supported. It is also pleaded that after the death of Chandanna, his other brother Revappa had taken care of second plaintiff and that Revappa performed the marriage of 17th defendant during his life time; that these defendants being granddaughters of propositor Shivalingappa being grandsons of Shivalingappa''s daugther Kallawwa and 17th defendant Gurubai being granddaughter of propositor through his son Chandanna, whom Neelabai married and therefore while the plaintiffs may be given their share as per law, these defendants also should be given their legitimate share in accordance with law from out of the joint family properties and they be put in possession thereof also.
In the wake of such dispute arising out of the pleadings, the learned judge of the trial court framed the following issues:
Whether the plaintiffs prove the correctness of the description of the suit properties?
Whether the plaintiffs prove the correctness of the genealogy annexed to the plaint?
Whether the plaintiffs prove that plaintiff No. 2 is the legally wedded wife of deceased Chandanna?
Whether the plaintiff''s prove that defendant No-17 Gurubai is the daughter of said deceased Chandanna?
Whether the plaintiffs prove that plaintiff No-2 Neelabai was having pre-existing right of maintenance over the suit properties?
Whether the plaintiff proves that plaintiff No-1 is the adopted son of the plaintiff No-2 and deceased Chandanna?
Whether the plaintiffs prove that Shivalingappa Bhakare is the common ancestor for the plaintiffs and defendants?
Whether the plaintiffs prove that all the suit properties shown in the schedule are joint and ancestral properties of plaintiffs and defendants?
Whether the defendant No-1 proves that already there was took partition in the year 1982 and in the said partition the properties shown in para 12 of the written statement have fallen to his share?
Whether the defendant No-1 proves that suit land Sy. No-130/1 measuring 10 acres 5 guntas and Sy. No. 254/3 measuring 4 acres of Sarsamba village are his self acquired properties?
Whether the suit of the plaintiff is barred by law of limitation?
Whether the plaintiff''s are entitled to partition and separate possession in the suit properties? If so, to what share?
Whether the plaintiffs prove that they are in joint possession of the suit properties along with defendants?
Whether the suit valuation shown by the plaintiffs is proper and correct?
Whether the court fee paid by the plaintiffs is proper and correct?
Whether the plaintiffs prove that there arose a cause of action to file this suit against defendants?
Whether the plaintiffs are entitled to the relief of a partition and separate possession in the suit properties as prayed for?
What decree or order?
Parties went on trial on such issues. On behalf of the plaintiffs, first plaintiff deposed as PW4, second plaintiff deposed as PW1, apart from the second husband of first wife of Chandanna by name Bhimrao Mudukanna as PW6 and three other witnesses, supporting the plaintiff. Documentary evidence comprises of ExP1 to 14. ExP1 being school transfer certificate in the name of Gurubai dated 11-11-2003, wherein it had been described as she is daughter of Chandanna; ExP2 being adoption deed dated 10-6-2001 evidencing first plaintiff being taken on adoption by the second plaintiff; ExP3 being positive photograph of adoption ceremonies; ExP4 to 11 being extracts of records of rights in respect of suit schedule properties; and ExP12 to 14 being demand extracts issued by the gram panchayat concerned.
On behalf of defendants, first defendant deposed as DW1 and though 16th defendant deposed as DW6, he only supported the case of the plaintiffs. 17th defendant Gurubal deposed as DW7, also only to support the case of the plaintiffs. Five other witnesses had been examined by the defendants in support of their case. Documentary evidence exhibited on behalf of the defendants are ExD 1 to 39. ExD1 to 26 are all extracts of record of rights in respect of various landed properties, which are in Marathi language and their English translations, ExD27 and 28 being sale deeds dated 5-5-1981 and 10-5-193 respectively; ExP28 being certified copy of the decree in OS No 247 of 1993; ExD31 being another original sale deed 19th Khurud 1354 Fasli in Urdu language along with a map; ExP32 being its translation; and ExP33 to 39 being receipts in Urdu language and their English translations.
The trial court, purporting to appreciate the oral and documentary evidence placed before it, answered issues 1 to 8 in favour of plaintiffs, holding that they have proved their case, and answered issues 9 to 11 in the negative - issues 9 and 10, where the burden was on the defendants and issue No 11 being the question of limitation as to whether the suit was barred by limitation, and therefore holding that the plaintiffs were entitled to partition and separate possession being in joint possession of the suit schedule properties. The trial court also held that the valuation is correct and so also the court fee paid and that the plaintiffs had a legitimate cause to sue, proceeded to decree the suit, holding that the plaintiffs and the 17th defendant together are entitled to half share in the suit schedule properties and are entitled to claim for division of their share by metes and bounds. It is challenging this judgment and decree of the trial court, the present appeal.
Defendants 1 to 4 - appellants herein - have urged in the appeal that the judgment and decree is not sustainable; that the trial court has committed a great error in not considering the admissions of the plaintiffs and their witnesses, which demonstrate that the plaintiffs are not entitled for any share and having not demanded for it in the past over 50 years and the suit filed after lapse of 50 years from the death of Chandanna, should have been dismissed as barred by limitation; that the learned judge of the trial court was in error in assuming that the defendants had not disputed the relationship amongst the parties, even when It was the case of the contesting defendants that second plaintiff and 17th defendant were never members of joint family nor were they entitled to claim any share in the suit schedule properties and even disputed the very marriage of Neelabai with Chandanna, which was never made good by the plaintiffs before the court below, decreeing the suit that too by invoking the provisions of Section 14 of the Succession Act is a clear illegality in law; that the plaintiffs themselves having pleaded that Chandanna had died prior to the coming into force of Succession Act and as per the customary Hindu law, after the death of Chandanna, there being only one coparcenar surviving in the family namely Revappa, he had inherited the entire family properties and had become the absolute owner thereof and even assuming for argument''s sake that Neelabai was wife of late Chandanna, she would, at the best, can claim only maintenance and nothing more, more so when Neelabai had specifically failed to prove that she was in possession of any of the suit schedule properties nor any properties had been given to her exclusively for the purpose of her maintenance and in such state of factual situation, provisions of Section 14 of the Succession Act was never attracted and therefore the judgment and decree of the court below requires to be set aside and the suit dismissed etc.
I have heard Sri M/s A.M. Nagaral and Ananth Jahagirdar, learned counsel for the appellants-defendants 1 to 4 and Sri P.N. Shah along with M/s I.R. Biradar, G.G. Chagashetty, B.V. Jalde, R.J. Bhusare, S.M. Chandrashekar, learned counsel for respondents 1 and 2 and Sri Laxmikanth T. Pujari, learned counsel for the respondents 3 to 11 and 16 and 17.
Sri AM Nagaral has mainly urged that the suit is barred by limitation; that the plaintiffs had not made good on available evidence that she was the legally wedded wife of Chandanna; that the plaintiffs had also not made good that the first plaintiff had been taken in a valid adoption by Neelabai as the widow of late Chandanna; that the suit items 1 and 2, both landed properties, were self-acquired properties of one of the sons of Revappa and therefore not to be added to the common hotchpotch; that admitted factum of first plaintiff being 17 years of age at the time of adoption in the year 2001, clearly invalidates the adoption, assuming that factually adoption has taken place; that such adoption is also hit by the provisions of Section 10(iv) of the Adoption Act, being beyond the age of 15 years at the time of adoption and the plaintiffs having not pleaded any special custom to get over the statutory bar, adoption is even otherwise invalidated; that the learned judge of the trial court has totally gone wrong in not only assuming that the provisions of the Hindu Women''s Right to Property Act, 1937 [for short, 1937 Act], enabled the second plaintiff to sue for partition in respect of the share to which her husband Chandanna was entitled to in the suit schedule properties, as the 1937 Act was never in operation in the erstwhile Hyderabad state ruled by Nizams; that when the provisions of the Succession Act came into effect on and after 17-6-1956, the second plaintiff being not possessed of any property of the family, there is absolutely no scope for applying the provisions of Section 14(1) to hold that her right of maintenance blossomed into a full property right to claim a share by partition of the family properties never arose.
In support of such submissions, learned counsel for the appellants-defendants 1 to 4 have relied on the following decisions:
a) Decision of the Supreme Court in the case of Satrughan Isser Vs. Smt. Subujpari and Others, with regard to the status and rights of a Hindu widow vis-a-vis family properties, who had acquired some right or interest under the 1937 Act and had sought to enforce that right by demand partition and the effect of demanding partition etc.
b) In support of the submission that there was no valid adoption and the plaintiffs have failed to plead and prove any specific custom prevailing in the family to claim an exception in terms of Section 10(iv) of the Adoption Act, Sri Nagaral has placed strong reliance on the decision of the Supreme Court in the case of Bhimashya and Others Vs. Smt. Janabi @ Janawwa,
c) Sri Nagaral has also placed reliance on the judgment of a division bench of this court in the case of Shivalingappa Vs. Gouravva, to contend that unless a member of a Hindu family was in possession of some property at the time Succession Act came into force. Benefit of Section 14(1) does not enure to such a member.
However, Sri Nagaral, learned counsel for the appellants, fairly submits that the amendment effected to the Succession Act, particularly the amendment to Section 6 as per the Central Act No 39 of 2005, conferring coparcenary rights in favour of daughters in joint family, if is also applicable for effecting a partition of the suit schedule properties on the premise that they are all joint family properties and that the 17th defendant Gurubai is daughter of Chandanna and assuming if the plaintiffs are successful in establishing the marriage of Neelabai and Chandanna, then Gurubai can claim a share as a coparcenar, irrespective of the plaintiffs'' establishing valid adoption of first plaintiff by Neelabai in the year 2001 etc.
On behalf of plaintiffs-respondents, submission of Sri P.N. Shaha is that there is much evidence to probablize the factum of marriage of second plaintiff Neelabai with Chandanna and in this regard has drawn attention to ExP 1 - school leaving certificate of Gurubai indicating that her father is Chandappa Bhakare. Attention is also drawn to the deposition of PW1, who has spoken about her marriage with Chandanna, her residence in Sarsamba village and circumstances under which she was forced to leave her husband''s house and take shelter in her mother''s house at Nandgaon village, and the evidence of PW5, a resident of Sarsamba village, who had seen second plaintiff living as her neighbour and wife of Chandanna, and also the evidence of PW6, second husband of first wife of Chandanna, who has spoken not only about the separation of Chandanna''s first wife from Chandanna and PW6 had married that lady and also that to his knowledge Neelabai had married Chandanna later.
It is also submitted that as per the customary law, widow of a coparcenar is entitled to take in adoption an heir and the date of adoption relates back to the date of death of member of the joint family and the adoption is deemed to be by member of the joint family etc., the adoption is also proved on the available evidence before the court and in this regard has drawn my attention to ExP2 and 3 and also deposition of PWs 2 to 4, apart from the deposition of DWs 2, 3 and 4.
Sri Shaha also submitted that a female Hindu with limited estate which was available to the second plaintiff under the provisions of the 1937 Act, as when Chandanna died in the year 1954, this Act was in force even in the erstwhile Hyderabad state and therefore she was entitled to sue for partition of her share and the moment demand is made for partition, share becomes defined and in terms of Section 14, the earlier limited estate can be claimed as full estate.
In support of the submission that even when a situation where there was sole surviving coparcenar in a family and in the event of widow of other coparcenar taking in adoption any person, they can sue for partition after the adoption for the share of her husband and that it is quite valid in law, reliance is placed on the decision of the Supreme Court in the case of Dharma Shamrao Agalawe Vs. Pandurang Miragu Agalawe and Ors, , Therefore, Sri Shaha submits that the learned judge of the trial court is fully justified in decreeing the suit and the judgment and decree of the court below does not call for any interference and the appeal is to be dismissed etc.
Sri Shaha also submits that in the wake of 2005 amendment to Section 6 of the Succession Act, irrespective of the adoption being valid or otherwise, the legal position in so far as the suit schedule properties are concerned is that Gurubai as a coparcenar and being daughter of Chandanna, will become entitled to half share in the suit schedule properties and the other half share, to be shared amongst all heirs of his other brother who survived him viz., Revappa and therefore submits that giving half share to the plaintiffs and the 17th defendant together cannot be said to have in any way reduced the share of the defendants and therefore the appeal is even otherwise also to be dismissed, as law as per Section 6 of the Hindu Succession Act, 1956 as of now, has to be applied while disposing of this appeal and therefore also the judgment and decree does not call for interference.
In the wake of the grounds urged in this appeal and contentions raised on behalf of the appellants and the respondents, the following points arise for determination:
i) Whether the answer of the learned judge of the trial court on the issues relating to second plaintiffs right as widow of deceased coparcenar in the joint family, is sustainable or calls for interference?
ii) Whether the learned judge of the trial court was right in answering the issue relating to adoption of the first plaintiff by the second plaintiff in the affirmative or calls for any correction?
iii) Whether the court below is justified in holding that the suit is not barred by limitation?
iv) Whether the second plaintiff had acquired rights under the 1937 Act and further as to whether the provisions of Section 14 of this Act were attracted in respect of any pre-existing right and the limited estate into corresponding full ownership rights?
v) Whether the allotment of half share in favour of plaintiffs and 17th defendant put together calls for any correction?
In so far as the point relating to factum of marriage of Neelabai and Chandanna is concerned, there is ample material on record apart from ExP1 in the form of oral testimony of PWs 1 to 3 and 6, who have deposed about the awareness of one Chandamma being earlier wife of Chandanna and later she left him and Chandanna having married Neelabai.
Though Sri AM Nagaral and Sri Ananth Jahagirdar, learned counsel for the appellants have urged that evidence on record in this aspect is not one to establish cogently the factum of marriage of Neelabai and Chandanna, the degree of proof required in a matter of this nature and at a point of time which is more than 50 years after the marriage, is not one as that of a marriage that has taken place recently and the factum that many residents of the village have spoken about Chandanna and Neelabai having lived like a couple, a factum which is not disputed by the defendants 1 to 4 that Neelabai was all along living in the family house of Bhakare till the year 1993 or a few years thereafter till she was forced to leave the family house and join her mother''s place at Nandagaon and the fact that Revappa had performed the marriage of Gurubai, who is admitted to be daughter of Neelabai, after the death of Chandanna, all goes to show that Neelabai and Chandanna had lived as man and wife and Neelabai being none other than the daughter of Kallawa, Chandanna''s sister Kallawa and no one having spoken either in the examination-in-chief or in the cross-examination about Neelabai being married to any other person, it is, in my considered opinion, good and strong enough an evidence to accept that Neelabai was the wife of Chandanna.
In so far as the applicability of the 1937 Act and the consequences upon Succession Act coming into force thereafter in respect of rights of Hindu widows in joint family properties, is concerned, it is very clear that the provisions of this Act definitely creates a right in favour of a widow of a coparcenar to claim as a matter of right an interest in the share that was due to her husband as a coparcenar, and Section 9 of this Act also gives an authority to such widow to adopt a son to the deceased husband.
On the authority of the law as stated by the Supreme Court in the case of SATRUGHAN [supra] relied upon by Sri A M Nagaral, learned counsel for the appellant, it is clear that a Hindu woman''s right given in the 1937 Act and on the widow claiming partition in respect of such share of her husband, that interest gets defined and even before effecting partition by metes and bounds, and such interest does not revert to other coparceners by devolution but thereafter goes by succession to the heirs of her husband is a clear authority to hold that the widow is fully entitled to the share of her husband in the joint family property and is taken out of the reach of other coparceners, once partition is demanded.
Even the judgment of the Supreme Court in the case of D.S. AGALAVE [supra], fully supports the case of the plaintiffs for claiming a share even by the widow and for negativing the defence taken by the defendants 1 to 4 that on the death of Chandanna and with Revappa being the sole surviving coparcenar, all properties reverted to him and he became the absolute owner thereof and on the strength of this authority of the Supreme Court in the case of D.S. AGALAVE [supra], the trial court has rightly held that the suit schedule properties do not become the absolute properties of sole surviving coparcenar and the widow Neelabai was entitled to demand a share and seek for partition of her husband''s half share in the properties.
Insofar as submission of Sri. Nagarale, learned counsel for the appellants based on the Judgment of the division Bench of this court in the case of '' Shivalingappa Vs. Gouravva, is concerned, while the legal position is indicated in this Judgment, namely, that unless a widow had an independent interest representing her right of maintenance and had remained so not only at the time of the 1937 Act coming into force, but also remaining so when the Hindu Succession Act, 1956 became operative for section 14 of the Succession Act to enlarge the limited estate of the widow into a full estate and conferring on her absolute rights in respect of the subject property, this question does not arise in the present appeal and more so, there being no conflict of interest between the adopting mother and the adopted son as was the case in the Judgment of this court in SHIVALINGAPPA''s case [supra], but in fact there is unity of interest between these two persons in the present case as the first plaintiff is the adopted son and second plaintiff is adopting mother and both have a share in the family property of which the father of the first plaintiff and husband of the second plaintiff, namely, Chandanna was member and therefore there is unity of interest and no conflict and the said Judgment is clearly distinguishable on facts of the present case.
In so far as the point relating to limitation is concerned, the feeble defence of the defendants 1 to 4 that there was a prior partition in the year 1983 between the first defendant and his father being neither made good on record nor having any consequence on the legal position, as it was no partition in the eye of law, as by that time the Succession Act had come into force following the 1937 Act and the fact that the second plaintiff was a member of the joint family can never be ignored and therefore such partition in any manner is of no consequence in so far as the plaintiffs claim was concerned.
Even the contention on behalf of the defendants that some of the suit schedule properties were self-acquired properties of one of the defendants is also not of much significance, as all other properties admittedly were of the joint family and there being independent income, they are also joint family properties, which is further augmented and has paved way for acquisition of other properties and therefore all suit schedule properties get into the ambit of joint family properties and therefore if there is a partition, all the suit schedule properties are required to be shared. With there being no prior partition, the question of limitation does not arise, as a partition can take place at any point of time so long as the family is joint.
In so far as the adoption is concerned, while there is some reliable evidence on record, a question whether a customary law of adoption of a person beyond the age of 15 years has been pleaded and proved, as urged by Sri A.M. Nagaral, learned counsel for the appellants, by placing reliance on the decision of the Supreme Court in the case of BHIMASHYA [supra], is concerned, I am of the view that a judgment of the Bombay High Court in the case of Shri Hanmant Laxman Salunke since deceased by his heirs Smt. Alka Hanmant Salunke and Others) Vs. Shri Shrirang Narayn Kanse, is nearer home to the situation on hand, particularly as the parties who, though claimed as Hindus and joint family status and all, are not necessarily governed by strict Hindu law concept of adoption and need for adoption to not only continue the family but also for offering oblation to the ancestors. In the present situation of facts and having regard to the customs to which the parties are accustomed to, there is no practice of offering oblation, in the sense, a pious obligation and the adoption is more for providing a heir to the property of the share of the deceased coparcenar. A learned Single Judge of the Bombay High Court has aptly summed up the situation prevailing in the area, which practice is very much prevalent amongst the parties to this case and the place, though, is known as former Hyderabad state, the customs and practices that are prevailing amongst Hindus living in this area are more governed by the customs and practices that had prevailed in the neighbouring State of Maharashtra amongst people belonging to the very community etc. Though a distinction is sought to be made by the learned counsel for the appellants on the ground that in the Bombay High Court case, parties were Marathis and were governed by a different custom etc., significance is that all these communities, whether Marathis or Lingayats, as per the customary Hindu Law and the classification of varnas therein, they are all classified as Sudras and in the Veerashaiva communities adherence or observance of pious obligations are not strictly operative in respect of all classes of communities.
Here a little elaboration of the single Bench decision of the Bombay High Court in HANMANT LAXMAN SALUNKE''s case [supra], will be useful.
In this decision, the learned single Judge of the Bombay High Court, following the view taken by the full Bench of the same High Court earlier in the case of Anirudh Jageorao Vs. Babarao Irbaji and Others, and following the view expressed in the case of Kondiba Rama Papal alias Shrike (dead) by his heirs and LRs and another Vs. Narayan Kondiba Papal, about the particular custom of adopting a person who is already married and who is aged above fifteen years being prevalent in some sections of Hindu Community residing in the geographical area known as Marathwada area to which very area the present litigants'' family also belongs to and which was clearly contrary to the requirements of section 10 of the Hindu Adoptions and Maintenance Act, 1956, held that the existence of such a variation in the customs of the local Hindus can be taken judicial notice of and therefore an argument that in the absence of a plea regarding existence of such a custom in the community, having been taken at the earliest point of time recedes to the background. The fact situation in the present case, on this aspect of legal position being identical with the fact situation as had been noticed in the Full Bench decision of the Bombay High Court and therefore this situation is distinguishable from the case decided by the Supreme Court and relied upon by Sri. Nagarale, learned counsel for the appellants in the case of BHIMASHYA [supra) and is of no avail on the facts of the present case.
The Bombay High Court to make an emphatic statement of the legal position regarding the validity of adoptions, particularly, for taking judicial notice of such practice being prevalent, had in turn relied upon a seven Judge Bench of the Hyderabad High Court of Old Nizam State in the case of ''SHESHADRI v VENUBAI'' reported in 37 DLR 244 decided on 1355 Fasli [1945-46 A.D.].
In fact, the full Bench of the Bombay High Court has expressed as in paragraph-14 of the Judgment in ANIRUDH''s case [supra] that the entire text of the Judgment though was in Urdu, with all the learned counsel appearing for the parties in that case before the Bombay High Court being conversant with Urdu language had apprised the court the contents and that learned counsel unanimously expressed that majority opinion in the Hyderabad Seven Judges Bench Judgment took the view that in Maratwada area of the Nizam State of Hyderabad, adoption of a married person was valid and that Hindus in Maratwada area were governed by Mayukha and not Mithakshara school of Hindu Law. Another decision rendered by the judicial committee of Nizam State of Hyderabad in the case of ''SAMBHAJI v. HANAMANTA'' reported in 34 DLR 664 to the effect that Hindus in the Maratwada area were governed by Mayukha School of Hindu Law or Customs and not by the Mithakshara and it is based on these two relevant and clinching authorities elucidating the customary law in Maratwada area, the Bombay High Court had taken the view that it constitutes a clear exception for the mandate of law in terms of clauses [3] and [4] of section 10 of the Hindu Adoption and Maintenance Act, 1956.
While this court would like to deal with another argument addressed by Sri. Nagarale, learned counsel for the appellants to the effect that in the particular area while the Mysore Hindu Law Women''s Rights Act, 1933 was not applicable, operative as it was not part of the erstwhile State of Mysore and even the Hindu Women''s rights to Property Act, 1937 under which widow''s estate gets enlarged as the widow of Chandanna, namely, second plaintiff Neelabai could have claimed any right, title and interest to the subject property only under one of these two enactments for claiming her right in respect of half share of Chandanna from out of the family properties, the Central Act also did not apply to the erstwhile State of Nizam of Hyderabad and therefore the widow of Chandanna could not succeed to his estate etc., this argument overlooks the fact that Neelabai is the second plaintiff and while as of now she can definitely claim such rights which not only the 1937 Act gives her but also Hindu Succession Act, 1956 for the reason that on and after the erstwhile State of Hyderabad was annexed to the Indian Union after the Razakar''s action in the year 1948, all central laws have been extended to this area by the subsequent Central Enactment whereby all existing central acts were extended to the geographical area that was the erstwhile Nizam State of Hyderabad. It is therefore that while adoption cannot be held to be invalid, even the right of second plaintiff as was available or created under the Hindu Womens'' Right to Property Act, 1937, exists and survives for enforcement.
Significance of adoption being valid or otherwise recedes to background, when the present legal position is examined, particularly for the operation of Section 6 of the Succession Act. Irrespective of the adoption or otherwise, the legal position is Gurubai - daughter of Chandanna -takes half share on the partition being a coparcenar through Chandanna and therefore the sharing ratio as between the branch of plaintiffs and the 17th defendant on the one hand and the rest of the defendants on the other, remains as half share for each branch.
In this view of the matter, whether on a factual basis or on a legal basis the emerging position is that the judgment and decree of the court below does not call for any interference. No scope for interference on any of the issues as the determined by the court below, all points framed for determination in this appeal are answered in favour of plaintiffs and against the defendants-appellants. In the result, this appeal is dismissed with costs.