Karnataka High Court

N L Manjunatha vs B L Ananda @ B L Anatha Shankara on 10 July, 2023

Bench: Shivashankar Amarannavar

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                                                         NC: 2023:KHC:23875
                                                            RSA No. 443 of 2009

                                                                                  R
                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 10TH DAY OF JULY, 2023

                                                BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                            REGULAR SECOND APPEAL NO. 443 OF 2009 (PAR)
                       BETWEEN:

                       1.   N.L. MANJUNATHA
                            S/O LATE N.H. LINGAPPA,
                            R/O OLD POST OFFICE ROAD,
                            NAGAMANGALA TOWN - 571 432.

                            THIS APPELLANT DIED ON 26.11.2020,
                            IN OBIDIANCE OF THE HON'BLE COURT,
                            DIRECTION DTD: 19.03.2021,
                            THE CAUSE TITLE IS AMMENDED

                            1(A) LEELAVATHI W/O LATE N.L. MANJUNATH,
                            AGED ABOUT 62 YEARS,

                            1(B) N.M. SATISH S/O N.L. MANJUNATH,
                            AGED ABOUT 46 YEARS,

                            1(C) RAVIKANTH S/O N.L. MANJUNATH,
Digitally signed by         AGED ABOUT 44 YEARS,
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH              1(D) N.M. CHANDRASHEKARA
COURT OF
KARNATAKA                   S/O N.L. MANJUNATH,
                            AGED ABOUT 40 YEARS,

                            ALL ARE RESIDENT OF,
                            OLD POST OFFICE ROAD,
                            NAGAMANGALA TOWN,
                            MANDYA DISTRICT-571 432.

                       2.   SMT. JAYALAKSHMI D/O LATE N.H. LINGAPPA
                            W/O DEVEGOWDA,
                            AGED 50 YEARS,
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                                       NC: 2023:KHC:23875
                                            RSA No. 443 of 2009




   R/O NELAMANE VILLAGE, KASABA HOBLI,
   PANDAVAPURA TALUK.
                                                   ...APPELLANTS

(BY SRI. SYED AKBAR PASHA, ADVOCATE FOR
 A-1 (A-C) AND A-2)

AND:

B.L. ANANDA @ B.L. ANATHA SHANKARA
S/O LATE B.K. NANJEGOWDA @ BAVIHATTI,
THAMMANAGOWDA, AGED 51 YEARS,
R/O BINDIGANAVILE VILLAGE,
NAGAMANGALA TALUK,
MANDYA DISTRICT - 571 432.
                                                  ...RESPONDENT

(BY SRI. GANGADHARAIAH A.N, ADVOCATE)
     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED:31.10.2008 PASSED IN
R.A.NO.11/2008 ON THE FILE OF THE CIVIL JUDGE (SR. DN.)
JMFC, NAGAMANGALA, DISMISSING THE APPEAL CONFIRMING
THE JUDGEMENT AND DECREE DATED12.12.2007 PASSED IN
OS.NO.153/1999 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
AND JMFC, NAGAMANGALA.

     THIS APPEAL COMING ON FOR DICTATING JUDGEMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is filed for praying to set aside the

judgment & decree passed in RA No.11/2008 dated

31.10.2008 by learned Civil Judge, (Sr.dn.) & JMFC,

Nagamangala and judgment and decree dated 12.12.2007

NC: 2023:KHC:23875 RSA No. 443 of 2009

passed in OS.No.153/1999 by learned Civil Judge (Jr.Dn.) &

JMFC, Nagamangala and prayed to dismiss the appeal.

2. The parties will be referred to as per their

rankings in the trial Court.

3. The appellants were defendants No.1 & 3 and

respondent No.1 was plaintiff in- O.S.No.153/1999. The

defendant No.2-N.L.Srikanta son of Late N.H. Lingappa has

not been arraigned as party in this second appeal. He was

arraigned as respondent No.1 in the first appeal. Plaintiff

had filed a suit for the relief of partition and separate

possession of his 1/3rd share in all the suit schedule

properties by meets and bounds and mesne profits. The

plaintiff and defendants No.1 & 2 are brothers and their

father died about six years prior to filing of suit leaving

behind plaintiff and defendants No.1 to 3 as legal heirs to

succeed his properties. The mother of the plaintiff and

defendants also died five years prior to the filing of the suit.

It is stated that during the life time of father they were

living together in joint family and after death of parents,

NC: 2023:KHC:23875 RSA No. 443 of 2009

defendant No.1 continued to be the manager of the joint

family. It is stated that the suit schedule properties are

ancestral and joint family properties of the plaintiff and

defendants and they fallen to the share of father of plaintiff

and defendants under partition and revenue records came

to be changed in the name of defendant No.1 without

consent of the plaintiff. It is stated that defendant No.1 was

mismanaging the joint family properties and therefore,

plaintiff requested to allot his share. The defendants did not

give share to the plaintiff. Therefore, the plaintiff convened

the panchayat but nothing happened in the said panchayat.

The plaintiff got issued notice to the defendants dated

28.08.1999, seeking his share as the defendants did not

give share. The plaintiff filed the suit for partition.

4. Defendant No.1 in his Written Statement has

admitted the relationship but contended that the plaintiff

has been adopted by B.K.Nanjegowda who is the

matrimonial uncle i.e., brother of their mother as he had no

issues. It is stated that the plaintiff left the company of his

NC: 2023:KHC:23875 RSA No. 443 of 2009

natural parents when he was aged seven years and

performed all ceremonies of giving and taking by natural

father and to that of the adoptive father. The daughter

Jayalakshmi who is sister of plaintiff & defendant No.1 is

also necessary party and she is not impleaded and

therefore, the suit is of bad for non-joinder of necessary

parties.

5. It is stated that B.K.Najegowda, adoptive father

of plaintiff has executed the Registered Will dated

22.01.1983 bequeathing his properties to the plaintiff. After

adoption plaintiff severed his relation with his natural

parents and was enjoying the properties of his adoptive

parents and living in the family of adoptive parents. It is

stated that defendants No.1 & 2 are living separately and

are enjoying their properties separately after partition.

Defendant No.2 did not get the katha changed to his name

as he was not in good terms with his wife. It is stated that

item No.4 of the suit schedule property was standing in the

name of grandfather of the defendants. The Grandfather of

NC: 2023:KHC:23875 RSA No. 443 of 2009

the defendants had 3 brothers and therefore, father of the

defendants is entitled only for 1/3rd share in item No.4.

Item No.5 of suit schedule property measuring 2 guntas

situated in Sy.No.39/1 was sold by the defendants father

long back and it is not a joint family property. So defendant

No.1 for the purpose of performing marriage of his daughter

sold 20 guntas of land out of item Nos.1 to 3 of the suit

schedule property. Sale deed came to be executed by

defendant No.1 in favour of Kempaiah on 28.07.1999 and it

is binding on the interest of plaintiff. The said alienation is

made as manager of the family for legal necessity and

benefit of the family and therefore, it is binding on the

plaintiff. The income of the suit schedule property was not

sufficient. The father of the deceased has created

usufructuary mortgage deed in respect of Sy.No.77/1, 2 & 3

and another property measuring 12 guntas in favour of

Mudalagirigowda and Halagegowda for Rs.26,500/- &

Rs.12,500/-. The said properties are still in possession of

the said persons. Suit schedule item No.9 is also mortgaged

by the father of the defendants in favour of

NC: 2023:KHC:23875 RSA No. 443 of 2009

S.Siddagangaiah for Rs.12,000/- with this he prayed to

dismiss the suit.

6. The plaintiff impleaded his sister Jayalakshmi as

defendant No.3 and also the purchasers as defendant Nos.4

to 7. They did not contest the suit. On the basis of the

pleadings, the trial Court has framed the following issues:

1) Whether the plaintiff proves that the suit schedule properties are ancestral and joint family properties of the plaintiff and defendants?

2) Whether the plaintiff proves that, the first defendant being kartha of joint family is not properly managing the property in the interest of joint family?

3) Whether the suit is bad for non-joinder of necessary parties?

4) Whether the defendant proves that the plaintiff adopted by his maternal uncle Sri. K.B.Nanjegowda, hence he has no right to the property of his natural father?

5) Whether the defendant proves that the item No.1, 2 and 3 sold by first defendant for the

NC: 2023:KHC:23875 RSA No. 443 of 2009

marriage of N.H.Shobha hence it is binding on the plaintiff interest?

6) Whether the plaintiff entitle for the relief of partition and separate possession of 1/3rd share in the suit schedule property?

7) What order or decree?

7. The plaintiff has been examined as PW1 and got

marked the documents as Exs.P1 to P13. Defendant No.1

has been examined as DW1 and examined DW.2 & DW.3

and got marked the documents as Exs.D1 to D14. The trial

court after hearing the arguments and appreciating the

evidence has answered issue No.1 & 2 in the affirmative,

issue No.6 partly in the affirmative and issue Nos.3 to 5 in

the negative and decreed the suit in part holding that the

plaintiff is entitled for 1/4th share in the suit schedule

properties and claim for mesne profits has been rejected.

Aggrieved by the said judgment and decree of the trial

Court the defendant Nos.1 and 3 filed an appeal in R.A. No.

11/2008 on the file of Civil Judge (Senior Division), JMFC,

Nagamangala (first appellate Court). The first appellate

NC: 2023:KHC:23875 RSA No. 443 of 2009

Court after hearing arguments has formulated the following

points for consideration:

i. Whether the judgment and decree of the trial Court needs to be interfered?

ii. What order or decree?

8. The first appellate Court answered point No. 1 in

the negative and dismissed the appeal confirming the

judgment and decree of the trial Court. Defendant Nos. 1

and 3 have filed this second appeal challenging the

judgments and decrees passed by the trial Court and first

appellate Court.

9. This second appeal came to be admitted to

consider the following substantial question of law.

Whether the courts below are justified in not accepting the adoption merely because there is no document when performance as per custom is proved?

10. Heard arguments of learned counsel for

appellants and learned counsel for respondent.

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NC: 2023:KHC:23875 RSA No. 443 of 2009

11. Learned counsel for appellants would contend

that plaintiff has been given in adoption to his maternal

uncle, namely, Sri. Nanjegowda @ Thammanna Gowda who

is the brother of his mother Smt. Sundaramma @

Lakshmama. Said adoption has taken place when the

plaintiff was 7 years old and after adoption the plaintiff

resided in the house of his adopted father. In the voter list

the plaintiff has been described as son of said Sri.

Nanjegowda. The plaintiff performed the rituals. Said Sri.

Nanjegowda has executed a Will (Ex.D.14) in favour of the

plaintiff bequeathing his properties. The witness, namely,

D.W.3 has stated regarding adoption and his evidence

establishes the factum of adoption. He submits that

execution of adoption deed is not a must but the ceremony

and other conditions are required to be proved. The

evidence of D.W.3 establishes the factum of adoption. The

trial Court and the first appellate Court only on the ground

that adoption is not witnessed by a deed have rejected the

contention of the appellants. Therefore, the judgments of

the trial Court and the first appellate Court are erroneous.

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NC: 2023:KHC:23875 RSA No. 443 of 2009

12. Learned counsel for respondent would contend

that the plaintiff is the faster son of Sri. Nanjegowda.

Plaintiff has not been adopted by the said Sri. Nanjegowda

but he has taken care of the plaintiff as his faster son. In

the Will (Ex.D.14) it is stated that the plaintiff is the faster

son of Sri. Nanjegowda who is the testator of the said Will.

Evidence of D.W.3 does not establish the ceremonies,

giving and taking of the child and consent of the parents.

He also submits that in the absence of deed, defendant

No.1 has to establish ceremonies, giving and taking of the

child and consent of parents to prove adoption. Same is

lacking in the instant case and considering the same both

the Courts rejected the contention of the appellants and

rightly decreed the suit.

13. Plaintiff, defendant No.1 and defendant No.2 are

the sons and defendant No.3 is the daughter of late

Lingappa and Smt. Sundaramma @ Lakshmamma. Plaintiff

claimed partition and separate possession of his share in

the properties of late Lingappa after his death. Defendant

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NC: 2023:KHC:23875 RSA No. 443 of 2009

No.1 has not disputed the relationship but contended that

the plaintiff has been adopted by Sri. Nanjegowda who is

his maternal uncle when he was aged 7 years. Admittedly

there is no document witnessing the said adoption deed.

The first appellate Court has held that in the absence of

registered adoption deed any amount of oral evidence will

hot help the appellants - defendant Nos. 1 and 3 to prove

adoption. Admittedly there is no adoption deed. Section 16

of the Hindu Adoption and Maintenance Act, 1956 (for short

`the Act') reads as under:

"16. Presumption as to registered documents relating to adoption. ― Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

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NC: 2023:KHC:23875 RSA No. 443 of 2009

Section 16 of the Act provides presumption as to registered

documents relating to adoption. Provisions of the Act does

not provide that the adoption is not valid in the absence of

adoption deed. Section 16 of the Act only provides that if

any document registered is produced before the Court

purporting to record an adoption made and is signed by the

person giving and the person taking the child in adoption,

the Court shall presume that adoption has been made in

compliance with the provisions of the Act unless and until it

is disproved. The presumption has to be raised under

Section 16 of the Act if the following ingredients are

established:

       i.       there must be a document;
       ii.      it must be registered under the law in force;
       iii.     it must purport to record an adoption;
       iv.      the document must be signed by both the

giver and taker of the child in adoption; v. it must be produced before the Court.

Therefore, what is provided under Section 16 of the Act is

presumption regarding the registered adoption deed that

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NC: 2023:KHC:23875 RSA No. 443 of 2009

the adoption has been made in compliance with the

provisions of the Act unless and until it is disproved. The

persons who are capable of giving in adoption is provided

under Section 9 of the Act which reads thus:

"9. Persons capable of giving in adoption.― (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

(2) Subject to the provisions of sub- section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:

Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.]

3* * * * *

[(4) Where both the father and mother are dead or have completely and finally renounced

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NC: 2023:KHC:23875 RSA No. 443 of 2009

the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.]

(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction."

The person who may be adopted is provided under Section

10 of the Act which reads thus:

"10. Persons who may be adopted.― No person shall be capable of being taken in adoption

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unless the following conditions are fulfilled, namely:―

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."

The other conditions of valid adoption are provided under

Section 11 of the Act which reads thus:

"11. Other conditions for a valid adoption. ― In every adoption, the following conditions must be complied with:―

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's

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son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

(v) the same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the

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place or family where it has been brought up to the family of its adoption:

Provided that the performance of datta homam shall not be essential to the validity of adoption."

14. The effect of adoption is provided under Section

12 of the Act which reads thus:

"12.Effects of adoption. ― An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that―

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property,

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including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption."

15. Parties are Hindus. Plaintiff was aged 7 years

when his maternal uncle took him. Plaintiff was not married

at that time. The only point that defendant No.1 has to

establish is that there were ceremonies of giving and taking

the adoptive child by his natural parents to the adoptive

parents and there was consent of natural parents and wife

of adoptive father. The only material witness who has been

examined to prove the adoption is D.W.3. D.W.3 in his chief

examination has only stated that in the house of one

Manjunath of Nagamangala in a function plaintiff - Ananda

has been taken by K.B. Nanjegowda @ Thammannagowda

as his adoptive son and after the death of K.B. Nanjegowda

@ Thammannagowda the plaintiff has performed the rituals

as a son. At the time of adoption the plaintiff was aged 6 -

7 years and he has attended the function wherein lunch was

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arranged. In the cross-examination D.W.3 has admitted

that as said Sri. Nanjegowda had no sons and he took the

plaintiff and he fostered him. D.W.3 has not stated the

ceremony of giving and taking of the plaintiff by his natural

father and taking of the plaintiff by adoptive parents, i.e.

Sri. Nanjegowda and his wife. Admittedly said Sri.

Nanjegowda had two wives - Smt. Nanjamma and Smt.

Kallamma. Defendant No.1 who has been examined as

D.W.1 and the witness D.W.3 have not stated that there

was consent of Smt. Sundaramma @ Lakshmamma -

natural mother of the plaintiff and Smt. Nanjamma and

Smt. Kallamma - wives of Sri. Nanjegowda. Even there is

no evidence regarding the presence of said natural mother

and adoptive mothers at the time of adoption function.

Therefore, the evidence on record does not establish the

ceremony of giving and taking and consent of the natural

mother and adoptive mothers. More so in the Will (Ex.D.14)

executed by Sri. Nanjegowda the plaintiff Ananda has been

described as faster son (¸ÁPÀÄ ªÀÄUÀ). If really Sri.

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Nanjegowda had adopted the plaintiff - Ananda, he ought

to have described in the Will (Ex.D.14) as his adoptive son.

Said statement of Sri. Nanjegowda in the Will (Ex.D.14) is

relevant under Section 32(5) of the Indian Evidence Act,

1862. The Said provision reads thus :

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-" " (1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) or relates to existence of relationship.- When the statement relates to the existence of any relationship (by blood, marriage or adoption) between persons as to whose relationship (by blood, marriage or adoption) the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised."

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16. Said statement of Sri. Nanjegowda made in the

Will (Ex.D.14) executed by him disproves the existence of

any relationship by blood or adoption. Said statement made

by said Sri. Nanjegowda was made before the question in

dispute was raised. Therefore, said statement made by Sri.

Nanjegowda in the Will (Ex.D.14) will clearly establish that

the plaintiff is not the adopted son of Sri. Nanjegowda and

he is the faster son of said Sri. Nanjegowda.

17. It is the act of adoption and not the adoption

deed which confers the status of the adopted son. A

perfectly valid adoption deed can be made without an

adoption deed and any status which the adopted son gets

by virtue of adoption is due to the proper ceremonies being

performed and not any deed passed as evidence of that

adoption.

18. Even Section 17 of the Registration Act, 1908

does not provide for compulsory registration of an adoption

deed. Therefore adoption deed or registered document is

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