IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH PRESENT THE HON BLE MR.JUSTICE ANAND BYRAREDDY AND THE HON BLE MR.JUSTICE L.

1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 29 th DAY OF JUNE, 2016 PRESENT THE HON BLE MR.JUSTICE ANAND BYRAREDDY AND THE HON BLE MR.JUSTICE L.NARAYANA SWAMY REGULAR FIRST APPEAL No. 200042/2014 C/W REGULAR FIRST APPEAL No. 200049/2014 REGULAR FIRST APPEAL No. 200042/2014: BETWEEN: 1. Girish S/o Late Vithalrao Kulkarni Age: 33 years, Occupation: Agriculture, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 401. 2. Manik Rao S/o Late Vithalrao Kulkarni Age: 47 years, Occupation: Agriculture, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 401. 3. Smt. Sulochana Bai

2 W/o Late Vithalrao Kulkarni, Age: 67 years, Occupation: Agriculture & Household Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 401. 4. Kalavati W/o Late Murlidhar Rao Age: 57 years, Occupation: Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 401. 5. Ramesh S/o Late Murlidhar Rao Age: 34 years, Occupation: Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 401. APPELLANTS (Shri Ameet Kumar Deshpande, Advocate) AND: 1. Champabai W/o Late Ramrao Kulkarni Age: 72 years, Occupation: Agriculture & Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 401. 2. Vanita W/o Manikrao Joshi Age: 37 years, Occupation: Household, Resident of Village Kodli village, Taluk: Chincholi,

3 District: Gulbarga 585 201. 3. Roopa W/o Shankerao Kulkarni Age: 35 years, Occupation: Household, Resident of Village Changlera, Taluk: Humnabad, District: Bidar 585 401. 4. Asha W/o Raghavendra Joshi Age: 33 years, Occupation: Household, Resident of Chalkapur, Taluk: Bhalki, District: Bidar 585 402. RESPONDENTS (Shri S. Sreevatsa, Senior Advocate for Shri Ravi B. Patil, Advocate for Caveat Respondent No.1, Shri Ashok S. Kinagi, Advocate for Respondents No. 2 to 6 Shri R.S. Sidhapurkar, Advocate for Respondents No. 7 & 8) This Regular First Appeal is filed Under Section 96 of Civil Procedure Code, against the Judgment and Decree dated 01.07.2014, passed in Original Suit Old No.26/2007 New No.61/2011 on the file of the Senior Civil Judge at Humnabad, wherein, the suit was decreed. REGULAR FIRST APPEAL No. 200049/2014: BETWEEN: Muralidhar Rao S/o Late Vithal Rao Since deceased by LRs. 1. Smt. Vanitha W/o Manikrao Joshi

4 Age about 37 years, Occupation: Household, Resident of Village Kodli village, Taluk: Chincholi, District: Gulbarga 585 307. 2. Smt. Roopa W/o Shankar Rao Kulkarni Age about 35 years, Occupation: Household, Resident of Village Changlera, Taluk: Humnabad, District: Bidar 585 403. 3. Asha W/o Raghavendra Joshi Age about 26 years, Occupation: Household, Resident of Chalkapur, Taluk: Bhalki, District: Bidar 585 403. (Shri Ameet Kumar Deshpande, Advocate) APPELLANTS AND: 1. Champabai W/o Late Ramrao Kulkarni Age about 79 years, Occupation: Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 403. 2. Girish S/o Late Vithalrao Kulkarni Age about 33 years, Occupation: Agriculture, Resident of Village Markhal, Taluk: Humnabad,

5 District: Bidar 585 403. 3. Manik Rao S/o Late Vithalrao Kulkarni Age about 47 years, Occupation: Agriculture, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 403. 4. Smt. Sulochana Bai W/o Late Vithalrao Kulkarni, Aged about 67 years, Occupation: Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 403. 5. Smt. Kalavati W/o Late Muralidhar Rao Age about 54 years, Occupation: Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 403. 6. Ramesh S/o Late Muralidhar Rao Age about 31 years, Occupation: Household, Resident of Village Markhal, Taluk: Humnabad, District: Bidar 585 403. 7. Laxmibai @ Shoba W/o Govindrao Aged:52 years, Occupation: Household, Resident at Halikhed B, Taluk: Humnabad, District: Bidar.

6 8. Suvarna W/o Achutrao Age: 48 years, Occupation: Household, Resident of Kherda-B, Taluk: Basava Kalyan, District: Bidar. RESPONDENTS (Shri S. Sreevatsa, Senior Advocate for Shri Ravi B. Patil, Advocate for Caveat Respondent No.1, Shri Ashok S. Kinagi, Advocate for Respondents No. 2 to 6 Shri R.S. Sidhapurkar, Advocate for Respondents No. 7 & 8) This Regular First Appeal is filed Under Section 96 of Civil Procedure Code, against the Judgment and Decree dated 01.07.2014, passed in Original Suit Old No.26/2007 New No.61/2011 on the file of the Senior Civil Judge at Humnabad, wherein, the suit was decreed. These appeals having been reserved on 9.6.2016 and coming on for Pronouncement of Judgement this day, Anand Byrareddy J., delivered the following: JUDGMENT These appeals are heard and disposed of by this common judgment, as the same are filed by two sets of defendants in the same suit.

7 2. The appeal in RFA 200042/2014 is filed by Defendant nos.1, 2, 3, 4 (i) & (ii). And the appeal in RFA 200049/2014 is filed by Defendant nos.4(iii), (iv) and (v), arraying the other defendants along with the plaintiff as the respondents. The suit was filed on the following assertions. The suit properties were agricultural lands of Markhal village, Humnabad Taluk, Bidar District. Champabai, aged 72, the widow of Ramrao Kulkarni claimed as the owner of the said properties, which were described in the Schedule to the plaint. She claimed to have inherited the properties from her husband. It is said that Ramrao had two wives, his first wife Chandrabai was dead. under:- The genealogical tree of the family is said to be as RAMRAO (Common ancestor who died long back) MANIKRAO (Died long ago)

8 Harnabai (Wife) (Died long ago) Govind Rao (Died) Ramrao (Died) Hanmanth Rao (Wives) (He has gone in adoption at Maergaon Village 1. Bapurao (died 30.7.94) Radha Bai (Wife) (died on 22.1.2001 2. Vithalrao (Died) 3. Sulochanabai (Wife)D-3 1) Chandrabai (1 st Wife (died) Shantabai (Sons) (Daughter) Manikrao D-2. Girish D-1 W/o Baburao Tadpalli 3) Kamalabai 4) Murlidhar Rao D-4 R/o Marka (died) 5) Champabai (2 nd wife) Plaintiff.

9 Ramrao is said to have died in the year 1972, leaving behind the two widows and a daughter - Shantabai. At the time of filing the suit, the first wife, Chandrabai and the daughter, Shanta bai, were no more. Hence the plaintiff was claiming as the sole heir to the suit properties. It is stated that there was a family partition in the year 1968, as between the sons of Manik Rao, namely, Govind Rao and Ramrao. It is said that a third son of Manik Rao, namely, Hanmanthrao had been given in adoption much prior to the said partition. The suit properties are said to have fallen to the share of the plaintiff's husband at the said partition. It is stated that as Ramrao had no sons, he had adopted Bapurao, a son of his brother Govindrao, in the year 1958, at a ceremony with the consent of his wives and the natural father of the adopted son. Govindrao's sons, namely, Vithalrao and Muralidharrao, are said to have partitioned the properties that had fallen to their

10 branch, in the year 1978, under a registered partition deed and Hanmanthrao was not given any share, in view of his adoption by Ramrao. The plaintiff along with Chandrabai and Bapurao is said to have jointly enjoyed the properties till the death of Bapurao in the year 1994 and the subsequent death of Chandrabai. It is claimed that it was after the death of Bapurao, that the defendants are said to have started interference with the peaceful possession of the suit properties by the plaintiff. It was claimed that the first defendant had been adopted by Bapurao, during his life time and hence he had laid claim to the suit properties. In this regard Girish, the first defendant is said to have filed a civil suit in OS 349/1994, on the file of the Court of Munsiff, Humnabad, naming, Radhabai, the widow of Bapurao, and the other defendants in the present suit, seeking partition and separate possession of the properties described in that suit, which included the present suit properties. Radhabai is said to have contested the suit and had filed her written

11 statement denying the adoption claimed by Girish, the plaintiff in that suit. While asserting that she had inherited the properties after the death of Bapurao. However, Radhabai is said to have died as on 22.1.2001, during the pendency of the said suit and before issues could be framed in the said suit. Champabai, the present plaintiff is said to have filed an application seeking to implead herself as a defendant in the said suit, OS 349/1994. But the application is said to have been rejected by the court, by an order dated 19.3.2002. It is stated that the other defendants, who were the uncle, brother and the mother of the plaintiff- Girish, are said to have filed their consent written statement admitting the claim of Girish. The said suit was accordingly decreed as prayed for, by a judgment and decree dated 6.6.2002. Incidentally, it is stated that Radhabai, the widow of Bapurao had filed a civil suit in O.S.No.6/1997 on the file of the Civil Judge, Basavakalyan, in order to counter the suit filed by Girish, seeking to protect the very suit properties involved

12 herein. The suit had been contested by Girish and others, who had incidentally contended that the suit was bad for non-joinder on account of the present plaintiff and the other widow of Ramrao not having been made parties. It then transpires the present plaintiff was sought to be impleaded as a party defendant in that suit. But before service of notice on this plaintiff, Radhabai the sole plaintiff, having died, the suit was said to have been abandoned and was said to have been dismissed as having abated by an order dated 7.7.2001. It is in this background it is alleged that the defendants had proceeded to dispossess the plaintiff from the suit properties in December 2005. Hence the suit for the relief of a declaration that the plaintiff is the absolute and exclusive owner of the suit properties and for recovery of possession of the same and for a further declaration that the decree in O.S.No.349/1994 dated 6.6.2002 as not binding on the plaintiff and other incidental reliefs.

13 The defendants nos.1 to 4 had filed written statement to claim that the plaintiff was not residing in Markhal village since the year 1973, after the death of Ramrao. And that she had no subsisting interest in the suit properties. It was contended that the suit was bad for non-joinder. In that, the first wife of Ramrao had a daughter, Shantabai, who was married to Baburao Talpalli, though she had pre-deceased her father, she had left behind two daughters Shoba and Suvarna who were alive and this fact had been suppressed by the plaintiff. It is stated that Ramrao, the husband of the plaintiff did have two wives namely Chandrabai and the plaintiff Champabai. Chandrabai had a daughter Shantabai who was married to Baburao Tadpalli of the same village. She however, predeceased her father. She had two daughters, Shoba and Suvarna who were alive. Ramrao died in the year 1973. Chandrabai died in the year 1998. Ramrao had an elder brother Govindrao and a younger brother Hanmanth Rao. Hanmanth

14 Rao was given in adoption to a family in Madergaon village. Govindrao had three sons namely, Bapurao, Vithalrao and Muralidharrao. Govindrao and Ramrao had partitioned their properties and Vithalrao was the father of Defendant No.1 and Defendant No.2 and husband of Defendant No.3. He had died in the year 1993. After the death of Vitthalrao, Bapurao and Radhabai who had no children, are said to have adopted Defendant No.1 Girish, after due ceremony. Bapurao had died in the year 1994 leaving behind his widow Radhabai and Girish his adopted son, as his legal heirs. Radhabai is also said to have died in the year 2001 and Girish was the only legal representative. The plaintiff did not have any children. She had lived with her husband only for a short while. It is claimed that after the death of Ramrao, Champabai, the plaintiff and Chandrabai had made an application to the Village Accountant, Markhal, for grant of mutation with regard to landed properties of late Ramrao. In their application, it was mentioned that after the death of their husband, the land bearing Sy.Nos.19/2, 19/3,

15 65, 67/2, 73, 128 and 133 all of Markhal village could be mutated; namely land bearing Sy.No.67/2 measuring 7 acres 2 guntas could be made in the name of Chandrabai and it was also requested to mutate land bearing Sy.No.73 measuring 7 acres 27 guntas in the name of Champabai, the plaintiff and it was further stated to have been requested to mutate the all other lands in the name of Bapurao, the son-in-law of Chandrabai. Accordingly, the pahanis were made out as requested for the years 1974-74 to 1993-94 and that pursuant to such partition, Champabai had sold 3 acres of land bearing Sy.No.73 in favour of Bhimarao under a registered sale deed dated 19.11.1991 and she had sold a further extent of 2 acres 30 guntas of the said land to one Ganpathrao under a registered sale deed dated 19.11.1991 and the remaining area of 1 acre 27 guntas had also been sold under a registered sale deed dated 13.03.2007 to one Sharnamma. It is denied that the plaintiff s husband Ramrao had taken Bapurao in adoption and Bapurao is said to have separated from the family during the lifetime of Govindrao and

16 he had been given land bearing Sy.No.68 measuring 3 acres 5 guntas and land bearing Sy.No.71/Aa measuring 3 acres 20 guntas, apart from a site. It was admitted that Govindrao and his sons Vithalrao and Muralidhar Rao had also partitioned the remaining properties of Govindrao under a registered partition deed dated 23.10.1978 and Bapurao had sold the land bearing Sy.No.68 to one Arvind and land bearing Sy.No.71/Aa to one Laxman Rao and the site to one Gudusab, long ago. It was denied that after the death of Ramrao, the suit properties were inherited by Chandrabai, Champabai, Shantabai and Bapurao jointly. It was denied that the defendants interfered with the plaintiff or her properties. It is asserted that by virtue of the application filed in the year 1974 by the plaintiff and Chandrabai, the lands have been divided as aforesaid and therefore, she has lost all right and interest in the properties other than the properties that were taken by her. It is the curse the plaintiff was seeking to lay claim to other properties with the civil suit in O.S.No.349/1994 filed by Girish against

17 Radhabai. In the suit, though the plaintiff had made an attempt to implead herself, the said application filed by her was rightly rejected and that order having become final, would bind the plaintiff and without questioning the said order, the plaintiff s suit was not tenable. The allegation of the suit in O.S.No.349/1994 being a collusive one, is denied as false and the fact that Radhabai had instituted a suit in O.S.No.6/1997 and Radhabai having died during the pendency of the suit, there was no bar for the plaintiff to have transposed herself as the plaintiff in that suit. The contention that though she was made a defendant, the suit had abated is a plea of convenience and disentitles the plaintiff to lay any such claim. It is therefore asserted that the suit is false and not maintainable. It is on these above pleadings that the court below had framed the following issues: 1. Whether the plaintiff proves that, she is the owner of suit properties?

18 2. Whether the plaintiff proves that, the decree in O.S.No.349/1994 on the file of the Prl. Civil Judge (JD) Court, Humnabad is a collusive decree and got obtained illegally? 3. Whether the plaintiff proves that, the defendants have illegally occupied the suit properties by way of dispossessing her as alleged? 4. Whether the defendants prove that, the suit of the plaintiff is barred by limitation as pleaded in para No.12 of their written statement? 5. Whether the plaintiff proves that, she is entitled for mesne profits? 6. Whether the plaintiff proves that, she is entitled to get rectify entries of the ROR of suit properties? 7. Whether the plaintiff is entitled for the reliefs as sought for? 8. What order or decree? The Trial Court has answered Issue Nos.1 to 3, 5 to 7 in the affirmative and Issue No.4 in the negative and has decreed

19 the suit. It is that which is under challenge in the present appeals. 3. It is contended by the learned counsel for the appellants that the Trial Court has overlooked Section 58 of the Evidence Act, 1872, namely that a fact which is admitted need not be proved. As the plaintiff had admitted the defence taken by the defendants in their written statement in the course of cross-examination, however that admission has been overlooked by the court below. In that, the plaintiff has admitted that she had indeed filed an application seeking mutation as already stated in respect of several items of land in the name of defendants and based on such an application, the revenue authorities had indeed effected mutation as early as in the year 1974 and the defendants had been put in possession and as reflected in the revenue records, had been paying revenue and enjoying the lands to the exclusion of the plaintiff ever since. Whereas, the false assertion of the plaintiff that she

20 was dispossessed in the year 2005 has been readily believed, overlooking the admission supported by ample material. It is contended that the suit was hopelessly barred by limitation, as the suit properties were mutated in the name of the defendants as early as in the year 1974, whereas the suit is filed in the year 2007 and therefore, was barred by limitation as it was filed after a lapse of 33 years and defendants asserting their title over the land. It is contended that there was no issue framed by the court below as regards the denial of the adoption of Defendant No.1 by Bapurao and in the absence of an issue, the court having proceeded as if he was not the adopted son, was impermissible. As in the absence of an issue, the defendants had no occasion to address the same in the said circumstances and hence, such a finding cannot be sustained. It is also stated that the court below has failed to take into account the fact that the plaintiff was estopped from laying claim to the suit properties in the light of the admitted circumstance that the

21 lands had been voluntarily handed over to the defendants by the plaintiff along with Chandrabai who had voluntarily made an application in that regard. It is also contended that the suit was bad for non-joinder, as the defendants had raised a specific plea that the plaintiff had suppressed the circumstance that Shantabai, the daughter of Chandrabai was not made as party and the plaintiff could not claim as an exclusive owner of the suit properties when admittedly the daughter of Chandrabai would have a right over the properties. 4. On the other hand, the learned Senior Advocate Shri S. Sreevatsa appearing for the counsel for the respondents would contend that as regards the contention that the court below had not framed an issue regarding adoption but has proceeded to arrive at a finding that there was no adoption of Defendant No.1 by Bapurao, is not significant, as it is open for this court under Order XLI Rule 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC, for

22 brevity), to resettle the issues and based on the evidence on record, affirm the finding of the Trial Court on the issue of adoption. He would submit that there are certainly pleadings to deny the adoption of Defendant No.1 and ample evidence to demonstrate that the court below was justified in arriving at such a finding. It is pointed out that Defendant No.1 had filed a civil suit in O.S.No.349/1994 seeking partition and separate possession of the suit properties claiming as the adopted son of Radhabai and Bapurao, S/o. Govindrao and Radhabai had filed a written statement denying that Girish, Defendant No.1 was adopted by her husband Bapurao and her. She had died before issues could be framed. On the death of Radhabai, though the plaintiff therein had to bring the legal representatives on record, he had not chosen to do so or if there were none, to have applied to the court, the Administrator General or other officer of the court to represent the estate of the deceased and the suit could have then been proceeded with in terms of Order XXII Rule 4 C.P.C. It

23 is then the judgment would have been binding on the estate of the deceased. On the other hand, the other defendants had readily compromised the suit on their consent written statement having been filed and therefore, the judgment in O.S.No.349/1994 did not bind the estate of the deceased Radhabai. Having regard to the fact that Radhabai had died after filing her written statement, the pleadings could not have been ignored and the question of adoption therefore sprung up as being directly and substantially in issue in that suit and Girish was bound to prove his adoption independently, as held by the Supreme Court in the case of Pentakota Satyanarayana & Others vs. Pentakota Seetharatnam AIR 2005 SC 4362. In any event, neither was adoption proved in O.S.No.349/1994 nor in the present suit. Girish, Defendant No.1 had not even entered the witness box. Therefore, the issue of adoption would have to be answered in the negative.

24 It is further pointed out that the appellant had denied that Bapurao was adopted by Champabai, but claimed that Chandrabai and Champabai gave Bapurao the suit property by virtue of Exhibit D-1, the application for mutation and as the appellant was adopted by Bapurao, he was entitled to the same. The adoption by Bapurao and Radhabai has been denied by Radhabai and the adoption has not been proved independently. Therefore, there was no question of Girish laying claim to the estate of Bapurao, but he claims the suit properties were part of the estate of Bapurao. Further, it was impermissible in law for the court to have treated the letter of 1974 for mutation, as a deed of partition. Since the appellant himself has denied that Bapurao was adopted by Champabai, in the absence of any registered conveyance of the property to Bapurao, the reliance placed on Exhibit D-1 is wholly misplaced. Therefore, the judgment and decree in O.S.No.349/1994 was not tenable.

25 It is further contended that the plea of estoppel set up against the plaintiff was also not tenable, in the absence of any registered conveyance to Bapurao, which was a legal requirement. Therefore, there could be no legal status conferred on the appellant when the statute does not lay such a claim to be made. Reliance is placed on the decision of the Apex Court in the case of B.L. Sreedhar and Others vs. K.M. Munireddy (Dead) and Ors AIR 2003 SC 578, in support of this proposition. It is also contended that the plea of non-joinder of the daughters of Shantabai who was the daughter of Chandrabai, is no longer relevant, as they have been made respondents in the present appeal as Respondents 7 and 8 and that there is no conflict of interest between the plaintiff and those respondents. The question of limitation does not arise. The learned counsel would assert that the denial of title was only in 2005. The argument that in view of Exhibit D1, it ought to be treated that there was a denial of title of the plaintiff, is untenable.

26 It is further pointed out that in the Civil suit in O.S.No.6/1997, the present respondent plaintiff though made a party in that suit, was never issued with suit summons and the suit abated and in O.S.No.349/1994, the present plaintiff was not made a party and it had ended in a collusive compromise decree to which again the plaintiff was not a party. Therefore, the same would not bind the plaintiff. It is also contended that the plaintiff had placed evidence that she was the owner of the land as against the appellant and other defendants. The relief sought was against the defendants and not any other persons. The judgment is in personae and nothing more was required to be done by the plaintiff. 5. In the light of the above rival contentions, insofar as the primary contention on behalf of the appellant that the Trial Court had failed to frame an issue regarding adoption, but had proceeded to arrive at a finding that the appellant had not been adopted, could not preclude this court from determining the

27 case finally in terms of Order XLI Rule 24 of the CPC, if the evidence on record is sufficient to enable this court to pronounce judgement and in order to do so, resettle the issues, if necessary, in finally determining the suit. It is not in dispute that the appellant had filed a civil suit in OS 349/1994, seeking partition and separate possession of the very suit properties, claiming as the adopted son of Bapurao, son of Govindrao and Radhabai. Radhabai had entered appearance and filed written statement denying that Girish was adopted by her and her late husband. This did give rise to an issue in that suit. But on account of Radhabai s death before the issues could be framed and in view of other defendants having blindly conceded the prayer of the appellant, who was the plaintiff therein, the question was not addressed. But however, Girish, the appellant herein was required in law to independently establish that he was the adopted son, as claimed. As held in Rahasa Pandiani and others vs. Gokulananda Panda and Others, AIR 1987 SC 962 by the apex court, an adoption

28 would divert the normal and natural course of succession. Therefore, the court has to be extremely alert and vigilant to guard against being ensnared by schemers, who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the court by the party contending that there was such an adoption. Again in Kishori Lal vs. Mt. Chaltibai, AIR 1959 SC 504, it is held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should

29 be such that it is free from all suspicion of fraud and so consistent and probable as to leave no action for doubting its truth. Therefore, in the absence of appellant Girish, ever having established by cogent evidence that he was the adopted son of Baburao and Radhabai, either in the suit in OS 349/1994 or in the suit instituted by the present respondent no.1, it give rise to an important issue, which the court below had failed to frame. Hence, we proceed to frame the following issue:- Whether Girish, defendant no.1 had established and proved that he was the adopted son of Baburao and Radhabai? The above issue is answered in the negative for the reasons already stated. It is pertinent to note that Girish had not even entered the witness box in the present case on hand. Therefore, it is definitely not proved that Girish was the adopted son as claimed. The second point for consideration is as follows:-

30 Whether Exhibit D.1,which is an application said to have been made by Champabai and Chandrabai and that in terms of the application, Bapurao had been put in possession of the suit properties mentioned therein and on that basis, the appellant having laid claim to the estate of Bapurao as his adopted son would have to fail on both the counts. The said document could never be construed as conveyance by Champabai and Chandrabai in favour of Bapurao and even if it could be so construed, Girish, the appellant could not claim as the adopted son of Bapurao. Therefore, the court was justified in negating the same. However, the letter of the said Exhibit D.1 having been treated as a partition deed, when the appellant himself had denied that Baburao was adopted by Champabai, the said document could not have been treated as a partition deed. The third point for consideration is as follows:

31 Whether the plaintiff was estopped from laying claim to the suit schedule properties by virtue of Exhibit D.1 As rightly contended by the learned Senior Advocate Sreevatsa, in the absence of any registered conveyance, which is the legal requirement, there can be no plea of estoppel having the effect of conferring a legal status on the appellant, which is denied to him by statute. As regards the plea of non-joinder of the daughters of Shantabai is no longer relevant as they have been made respondents no.7 and 8 in the present appeal and there appears to be no conflict between them and the first respondent. The question of limitation also does not arise against the first respondent in filing a suit, as the assertion was that the denial of title of respondent no.1 herein to the suit properties was only in the year 2005 and the suit had been filed in the year 2007. Exhibit D.1, as already stated, cannot be set up to deny the title of the plaintiff. There is no other evidence of

32 denial of title. Though in O.S.No.6/1997, respondent no.1 herein was a party and she was never issued with suit summons and the suit had abated. Insofar as the civil suit in OS No.349/1994, the present respondent no.1 was not made a party and it had ended in a compromise. Any decree therein was certainly not binding on respondent no.1. Therefore, on all counts, none of the grounds urged are tenable. The appeals fail and are dismissed. Sd/- JUDGE Sd/- JUDGE KS/nv