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Shankarappa Vs. Chikka Kempamma W/O Late Surappa and Siddappa (Since Dead by L.Rs. Papanna S/O Siddappa, - Court Judgment

LegalCrystal Citation
SubjectFamily ;Property
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 611/2005
Judge
ActsHindu Adoption and Maintenance Act - Section 6
AppellantShankarappa
RespondentChikka Kempamma W/O Late Surappa and Siddappa (Since Dead by L.Rs. Papanna S/O Siddappa, ;gangamma a
Appellant Advocate Yoganarasimha,; Deepashree and; Amarnath Sinha, Advs.
Respondent Advocate M.B. Chandrachooda, Adv. for R1
DispositionAppeal dismissed
Excerpt:
.....of the relevant material -re-determination of compensation under relevant heads - held, the deceased was aged 28 years, working as helper cum operator drawing salary of rs.4,592/- per month as per the salary statement ex.p 13 issued by the employer pw-3. when such being the case, the tribunal -is not justified in assessing the income of the deceased at only rs.3,0007- per month. hence, it is appropriate to re-assess the income of the deceased at rs.6,000/- per month - further held, since the deceased has left behind five dependents, 1/4,h has to be deducted towards his personal and living expenses. accordingly, after deducting 1/4'h (rs.1,5007-) from the said income, the net monthly income comes to rs.4,500/-. the proper multiplier applicable in the case, as per the decision of the..........propositus. he had three children namely surappa, kempaiah and chikka gadiyappa. surappa's wife is chikka kempamma the plaintiff in o.s. no. 183/1987. plaintiff appellant is grand son of kempaiah. chikka gadiyappa died issue less. by virtue of adoption by chikka kempamma, plaintiff has become absolute owner of the suit schedule properties of surappa. it is alleged that, there was a partition amongst surappa and kempaiah in 1959 as chikka gudiyappa was predeceased and wife was also predeceased to him. the entire properties of pillemane gudiyappa become absolute properties of plaintiff appellant, as surappa died 20 years prior to filing of the suit. it is chikka kempamma was only contesting the suit.4. chikka kempamma filed her written statement interalia denying the adoption of the.....
Judgment:

Subhash Badi, J.

1. Appellant in both the appeals is one Shankarappa who is plaintiff in O.S. No. 245/1987 and 3rd defendant in O.S. No. 183/1987. Defendant No. 1 has filed O.S. No. 183/1987 interalia seeking declaration, declaring that, she is the absolute owner in possession of the suit schedule property, whereas, the appellant plaintiff has sought for declaration that he is the owner of the suit schedule property by virtue of adoption by defendant No. 1.

2. Since the issue involved in both the suits being common, both the suits were clubbed together and joint trial was held.

3. The case of the plaintiff is that, one Pillemane Gudiyappa was the propositus. He had three children namely Surappa, Kempaiah and Chikka Gadiyappa. Surappa's wife is Chikka Kempamma the plaintiff in O.S. No. 183/1987. Plaintiff appellant is grand son of Kempaiah. Chikka Gadiyappa died issue less. By virtue of adoption by Chikka Kempamma, plaintiff has become absolute owner of the suit schedule properties of Surappa. It is alleged that, there was a partition amongst Surappa and Kempaiah in 1959 as Chikka Gudiyappa was predeceased and wife was also predeceased to him. The entire properties of Pillemane Gudiyappa become absolute properties of plaintiff appellant, as Surappa died 20 years prior to filing of the suit. It is Chikka Kempamma was only contesting the suit.

4. Chikka Kempamma filed her written statement interalia denying the adoption of the plaintiff appellant and also claimed that, she is the absolute owner of the suit schedule properties. Before the Trial Court, plaintiff appellant was examined as DW4. He also examined DW1 to DW3 and DW5 in support of his case and got marked Exs. D1 to D8, whereas, on behalf of Chikka Kempamma, her General Power of Attorney, was examined as P.W. 1 and three witnesses were examined as PW2 to PW4 and Exs. P1 to P12 were marked in their evidence.

5. Initially the Trial Court on the basis of the evidence led by the plaintiff appellant held that, the plaintiff has proved the adoption and granted decree of declaration of his title. As against which, appeal was tiled by Chikka Kempamma. Appeal was allowed, against which the matter had came up before this Court in Second Appeal. This Court remanded the matter to the Trial Court for fresh trial interalia holding that, the Trial Court has failed to give finding on issue as regard to the adoption. After remand, the Trial Court on appreciation of the evidence held that, the plaintiff has failed to prove the factum of adoption by leading appropriate evidence. Said judgment is confirmed by the Appellate Court, simultaneously suit filed by Chikka Kempamma was decreed and confirmed in appeal. As against these two judgments, two separate appeals are filed by the appellant.

6. Learned Counsel for the appellant submits that, in support of proof of adoption, natural parents of the plaintiff were examined. They have stated that, they have given the plaintiff in adoption by keeping the plaintiff on the lap of the defendant Chikka Kempamma and Chikka Kempamma has not entered the witness box, in turn, her Power of Attorney Holder has entered the witness box, as such, the factum of adoption has been proved by the plaintiff. He further submitted that, to substantiate the adoption Ex. D7 was produced, which is a Transfer Certificate showing the name of the adopted father. These circumstance and the evidence were not taken into consideration by the Trial Court and the Appellate Court. He also submitted that, during the pendency of this appeal Chikka Kempamma also died and plaintiff's children were brought on record as legal heirs of Chikka Kempamma. He also submits that, there are other persons who are also claiming as legal heirs. In view of the evidence led by the plaintiff and the Transfer Certificate, the Trial Court and the Lower Appellate Court were not justified in dismissing the suit of the plaintiff and decreeing the suit of the deceased Chikka Kempamma.

7. On the other hand, learned Counsel appearing for the respondent Kempamma submitted that, the adoption is required to be proved either in consonance with the custom prevailing in the community or by necessary material. Section 6 of the Hindu Adoption and Maintenance Act stipulates the requirement of the valid adoption. Except producing Ex. D7- the Transfer Certificate, no other material has been produce. In turn, Kempamma through the Power of Attorney has produced Exs. P10 and P11 showing that the plaintiff appellant was not a member of the family of Kempamma and there is no adoption. Except the oral testimony of the natural parents of the plaintiff, there is no corroborating evidence to prove the adoption. Both the Courts concurrently have held against the plaintiff. Being a finding of fact he submitted that, there is no substantial question of law, as both the Courts on facts have held that, adoption is. not proved.

8. It is not in dispute that, Kempamma alleged to be the adopted mother has filed written statement. In her written statement, categorically she has alleged that, there was no adoption and he has denied giving of plaintiff in adoption. No doubt Kempamma has not entered the witness box, but her General Power of Attorney has entered the Witness Box and has also denied the factum of adoption, in turn, Exs. P10 and P11 shows that, in the family of the Kempamma, name of the plaintiff was not shown either in the Voters List or otherwise. Further to prove the adoption, no sufficient evidence is produced, neither the ceremony nor any other evidence to establish the factum of adoption. Though plaintiff alleges that, ceremony was held, but to support the same, no material has been produced. Being a finding of fact and there being no substantial question of law involved in this appeal, I do not find there is any ground to admit these appeals.

9. Accordingly, appeals fail and same are dismissed. However, it is open to the plaintiff, if there are any other rights accrued by virtue of death of Kempamma, he is at liberty to agitate separately.


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