Hon''ble Mr Justice R. Kantha Rao
1. This second appeal is filed against the decree and judgment dated 14.10.2003 passed by the II Additional District Judge, Kadapa at Proddatur in A.S.No. 22 of 2002 reversing the decree and judgment dated 01.05.1999 passed by the Junior Civil Judge, Jammalamadugu in O.S.No.267 of 1997.
2. I have heard Sri C. Sadasiva Reddy, the Learned Counsel appearing for the appellant/defendant. Though served with notice, none appeared for the respondent.
3. The respondent is the natural daughter of the appellant-Avula Jayarami Reddy. The parents of the respondent gave her in adoption to A.Lakshmi Reddy and his wife on 14.02.1985. Both the Courts below on facts and evidence held that the adoption is valid. The Hindu Succession (A.P. Amendment) Act, 1986, Act 13 of 1986 came into force in the State of A.P. w.e.f 05.09.1985. As per the said Act, a daughter is considered to be coparcener and she can claim share in the joint family property by virtue of Section 29A of Hindu Succession Act, 1986 provided she was married prior to 06.06.1996 and the joint family properties were not partitioned on the said date. In the instant case, the learned trial Court took the view that as per the evidence on record, the adoption of the respondent/PW.1 was on 14.02.1985 i.e. prior to the commencement of Hindu Succession (Amendment) Act, 1986 which came into force w.e.f. 05.09.1985 and held that a woman is not a coparcener on the date when PW1 was given in adoption and therefore, she cannot claim any right in the ancestral properties of her natural father with the other coparceners. The learned trial Court further held that from the date of adoption for all purposes she will be the daughter in the adoptive family and as she was not a coparcener in the natural family on the date of adoption, she is not entitled for partition in the properties of her natural family. Taking the said view, the learned trial court dismissed the suit.
4. The learned first appellate Court, however, concurring with the findings on the validity of adoption, reversed the decree and judgment passed by the trial Court on the ground that as per Section 12 of the Hindu Adoptions and Maintenance Act, 1956 an adopted child shall not be divested of any property already vested in it before adoption. The learned first appellate Court was of the view that since the respondent by virtue of Section 12 Proviso (b) of Hindu Adoption and Maintenance Act, 1956 shall not be divested of the property of natural family, she can claim partition of the properties of the natural family. On the said analysis, the learned appellate Court reversed the finding arrived at by the learned trial Court.
5. In my view, the learned first appellate Court has fallen into error in understanding the terminology of Section 12 of the Hindu Adoptions and Maintenance Act, 1956, in the light of Section 29A of the Hindu Succession Act as Amended in the State of Andhra Pradesh. The Proviso (b) of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 lays down that if any property vested in the child prior to the adoption the child shall not be divested of the said property. In the instant case, the respondent was not a coparcener on the date of adoption i.e. on 14.02.1985. If that is so, it cannot be said that any right is vested in her as a coparcener on the said date. When once she has no right on the crucial date to claim partition in the capacity of coparcener, it cannot be said that she cannot be divested of right to claim partition in the properties of natural family after she was given in adoption to the adoptive family. After adoption for all purposes she is considered to be the daughter having all rights in the adoptive family and she cannot claim any right which was not vested in her on the date of adoption. The learned first appellate Court, therefore, is in manifest error in holding that the respondent can exercise her right as coparcener after she was given in adoption to the adoptive family on 14.02.1985.
6. Further, admittedly the appellant has a son, apart from the respondent. The respondent also stated that the appellant has a son and claimed 1/3rd share in the properties of her natural family, but she did not include her brother (the son of the appellant) as party to the suit for partition. The contention of the Learned Counsel appearing for the appellant is that the suit is bad for non joinder of son of the appellant as party to the suit for partition filed by the respondent and on that score also the suit is liable to be dismissed. In a suit for partition, all the parties having share in the property sought to be partitioned shall be joined as parties. In the absence of joining any party, who has share in the property the suit for partition is not maintainable and is liable to be dismissed for non-joinder of necessary parties. Therefore, the suit is also not maintainable for not joining the son of the appellant as party to the suit. The learned first appellate Court has fallen into error in reversing the decree and judgment dated 01.05.1999 passed by the Junior Civil Judge, Jammalamadugu in O.S.No.267 of 1997. The decree and judgment passed by the first appellate Court decreeing the suit filed by the plaintiff is liable to be set aside in this appeal.
7. In the result, the decree and judgment dated 14.10.2003 passed by the II Additional District Judge, Kadapa at Proddatur in A.S.No. 22 of 2002 is set aside. The second appeal succeeds and the same is allowed. There shall be no order as to costs.
