Karnataka High Court
Basavaraj vs Virupakshappa on 19 April, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.2757/2007 (INJ)
BETWEEN:
1. BASAVARAJ,
S/O MALLANNA,
R/O. DANNEHALLI VILLAGE,
JAGALUR TALUK.
CORRECT NAME & ADDRESS:
BASAVARAJA ADOPTIVE
S/O HAMPANNA,
AGED ABOUT 32 YEARS,
AGRICULTURIST,
R/O. ANABUR VILLAGE,
JAGALUR TALUK,
DAVANGERE DISTRICT - 577 001.
... APPELLANT
(BY SMT. P.C. VINITHA, ADVOCATE)
AND:
1. VIRUPAKSHAPPA,
S/O KARE KOLADA THIPPANNA,
AGED ABOUT 54 YEARS,
GOVT. HOSPITAL EMPLOYEE,
HOSPITAL QUARTERS,
NAYAKANAHATTI VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT - 572114.
... RESPONDENT
(BY SRI M.V. REVANASIDDAIAH, ADVOCATE)
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 13.9.2007
PASSED IN R.A.NO.25/2007 ON THE FILE OF THE DISTRICT
JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 21.04.2007
PASSED IN O.S.NO.216/2004 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR.DN), DAVANAGERE, DECREEING THE SUIT FOR
DECLARATION AND INJUCTION.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.04.2024, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This second appeal is filed against the judgment and
decree dated 13.09.2007 passed in R.A.No.25/2007, on the file
of the District Judge, Davanagere, dismissing the appeal and
confirming the judgment and decree dated 21.04.2007 passed in
O.S.No.216/2004, on the file of the Prl. Civil Judge, (Sr.Dn.),
Davanagere.
2. The parties are referred to as per their original
rankings before the Trial Court.
3. The factual matrix of the case of the
plaintiff/respondent in a suit filed by him for the relief of
declaration is that he is the owner in possession and enjoyment
of the suit schedule property and while seeking the relief of
permanent injunction, it is contended that his family constitutes
his father and brother Hampanna. His family got divided the
properties through oral partition in the year 1975. The suit
property was allotted to the share of said Hampanna. The said
Hampanna was enjoying the suit property, he died long back
issueless. His wife Basamma was his only legal heir. After his
death, the said Basamma was looking after the suit property and
she also died on 08.11.2003. Both Hampanna and Basamma
died intestate without having any issues. It is contended that
the plaintiff, as full brother and being class I heir, is the only
successor to the estate of the deceased Hampanna. The
possession of the suit schedule property was taken over by him
soon after the death of Basamma. The defendant being stranger
to him and his family, is not having any semblance of right, title
or interest over the suit property and he started interfering with
his peaceful possession and enjoyment of the same. During the
lifetime of Basamma, she has filed a suit for partition and
separate possession in respect of the property allotted to the
share of Mallamma in O.S.No.149/1995, on the file of the
Principle Civil Judge (Sr.Dn.) Davanagere and the same was
dismissed and against the dismissal of the suit, an appeal was
filed and the same was dismissed. After the death of Basamma,
the defendant has come up with an application contending that
he is her adoptive son and got changed the khatha in his name
without intimating the plaintiff and hence filed the suit.
4. In pursuance of the suit summons, the defendant
appeared and filed the written statement contending that
Hampanna and Basamma adopted him when he was aged about
two years and to evidence the said fact, adoption deed was also
registered on 18.01.1995. Therefore, since he is the adopted
son, he succeeded to the estate and khatha has also been
changed in his name and the plaintiff do not succeed to the
estate. His natural mother Revamma and his adoptive mother
Basamma are full blood sisters and prayed the Court to dismiss
the suit.
5. The plaintiff in order to prove his case, examined
himself as P.W.1 and other two witnesses as P.W.2 and P.W.3
and got marked the documents at Exs.P.1 to 10. On behalf of
the defendant, the defendant examined himself as D.W.1 and
also examined D.W.2 to D.W.7 and got marked the documents
at Exs.D.1 to 28. The Trial Court having considered both oral
and documentary evidence placed on record, decreed the suit.
Being aggrieved by the judgment and decree, an appeal is filed
in R.A.No.25/2007 and the First Appellate Court having re-
assessed the material on record, dismissed the appeal. Hence,
the present second appeal is filed before this Court.
6. The main contention urged by the learned counsel
for the appellant in this second appeal is that the Trial Court has
failed to appreciate the fact that the appellant is the adopted son
of Hampanna and Basamma when he was two years old and in
order to prove the factum of adoption, the adoption deed is
registered on 18.01.1995. The appellant has claimed
testamentary and succession and possession and the same has
not been appreciated by the Trial Court and the First Appellate
Court. The Trial Court has failed to appreciate the factum that
the registered adoption deed is dated 18.01.1995 and adoptive
mother has died on 08.11.2003. The adoption deed has not
been challenged and further Ex.D.13 another registered
document dated 31.03.1998 showing that the defendant is the
adopted son of Hampanna and Basamma and therefore the
impugned judgment is liable to the set aside. The Trial Court
ought to have dismissed the suit having considered the
registered adoption deed and partition deed, which have been
marked as Exs.D.13 and 14 and also presumptive value has not
been given to the revenue documents. The Courts below failed
to appreciate that D.W.2 is the attestor of the adoption deed
Ex.D.12, who identified the signatures of the witnesses to the
said document and also the signature of both Basamma and
Revamma. Merely because D.Ws.2, 3, 4 and 5 do not know the
date and month of the deed, it cannot be ignored even on the
basis that they do not reside in Anaburu Village. The Courts
below ought to have seen the factor that D.W.7, aged about 80
years residing at Anaburu Village, has categorically stated that
Basamma adopted and adoption deed was executed in the year
1995, but merely because that he do not know as to who are all
the witnesses and how many times they put signatures on that
basis, the same cannot be taken negative view and both the
Trial Court and the First Appellate Court have committed an
error in not considering the adoption.
7. This Court while admitting the second appeal has
framed the following substantial questions of law:
(i) Whether the Courts below are justified in not
drawing presumption under Section 16 of the
Hindu Adoption and Maintenance Act, with
regard to the factum of adoption of the
defendant by Basamma and her husband in the
light of Ex.D.12 registered adoption deed dated
18.01.1995?
(ii) Whether the finding of the Courts below that
defendant has failed to prove the adoption is
perverse as a result of drawing improper
inference from the oral evidence of the
witnesses examined in proof of adoption?
8. The learned counsel for the appellant in her
argument would vehemently contend that there is no dispute
with regard to the fact that Hampanna and the plaintiff are the
brothers. It is the specific case of the appellant that he was
adopted when he was two years old and adoption deed was
registered on 18.01.1995 confirming the earlier adoption. The
said document is marked as Ex.D.12. The attesting witnesses
are also examined before the Trial Court as D.W.2 and D.W.7.
Ex.D.13 is the partition deed and the fact that Hampanna died in
the year 1992 is not in dispute. The revenue entries are found
in the name of Basamma from 1992-1998 in all the RTCs. The
mutation is also made in favour of the appellant and the same
has not been challenged and possession is still with the
appellant. The appellant also availed the loan from the bank.
The respondent, till the death of Basamma, has not done
anything and thereafter only the present suit is filed before the
Trial Court in the year 2004 immediately after the death of
Basamma. The learned counsel would contend that both the
Courts failed to consider Exs.D.12 and 13 and possession is also
admitted and both the Courts failed to appreciate the evidence in
a proper perspective. D.W.2 and D.W.7 have spoken about the
adoption. It is not in dispute that the property was allotted in
favour of Hampanna in the partition of the year 1975 and
fulfilled all the conditions of adoption. The learned counsel in
support of her argument relied upon the reported judgment of
this Court passed in R.S.A.No.498/2007 dated 16.02.2004. The
learned counsel would contend that this Court considered the
provisions of Sections 11 and 16 of the Hindu Adoption and
Maintenance Act, 1956. The learned counsel referring this
proviso would contend that whenever any document registered
under any law for the time being in force 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 the adoption has been made in
compliance with the provisions of this Act, unless and until it is
disproved. This Court also framed the substantial questions of
law with regard to presumption is concerned. This Court
discussed in detail in paragraph No.33 as to the presumption is
concerned and hence the learned counsel would contend that
when adoption has been proved and when presumption has not
been rebutted, the said judgment is aptly applicable to the case
on hand.
9. The learned counsel would contend that adoption can
be challenged only by the adoptive parents and adoptive son and
others have no locus standi to question the validity of the
adoption deed. The learned counsel contend that the said issue
has also been considered by this Court in paragraph No.37 of the
judgment referred supra. The plaintiff being the brother of the
said Hampanna, cannot question the adoption and validity of the
adoption deed and the plaintiff has no locus standi to question
the same and hence it requires interference of this Court.
10. Per contra, the learned counsel for the respondent
would contend that it is not in dispute that the respondent and
the said Hampanna are own brothers. It is also not in dispute
that the said Hampanna died in the year 1992. The learned
counsel would contend that the said Basamma earlier filed a suit
in O.S.No.149/1995 against the respondent and the said suit
was dismissed and the same is confirmed by the First Appellate
Court and so also in R.S.A. The learned counsel contend that
the adoptive mother not added based on unregistered partition
claims 12 acres of land. The learned counsel would contend that
even when proved the adoption, the adopted son has no right
since the suit filed by Basamma was dismissed. The issue was
already been adjudicated. The learned counsel contend that
adoption has not been proved and when he was taken as
adopted son, according to him, he was two years, but no proof is
placed before the Court and there must be 21 years gap
between the male adoption by woman and the same is also not
been proved and condition of the adoption is also not proved.
When such being the case, the question of interfering with the
concurrent finding does not arise. Section 16 of the Act with
regard to presumption is concerned, no material has been placed
and such presumption is not available to the appellant. Ex.D.13
is not the adoption deed and the same is partition deed. There
are material contradictions in the evidence of P.W.6 and there is
no any corroborative evidence. The Court has to take note of
the admission of P.W.7 and adoption has not been proved.
Ex.D.12 contents are clear that already there was a adoption and
the same is considered by both the Courts and hence it does not
require any interference of this Court.
11. In reply to the arguments of the learned counsel for
the respondent, the learned counsel for the appellant would
contend that earlier suit is not in respect of the suit schedule
property and the same is in respect of different schedule
property and there is an admission in the earlier suit. The
learned counsel contend that both the Courts failed to consider
Exs.D.12 and 13 and already there was a oral partition in the
year 1975 and the same has been admitted and claim is only in
respect of 9 acres each given to the parties. In respect of the
said properties only claim is made. The earlier suit is not in
respect of partition and the same is only in respect of share of
Mallamma. The fact that the appellant is in possession is also
not in dispute.
12. The learned counsel for the respondent filed an
application in I.A.No.1/2024 praying this Court to permit the
respondent to place the copies of the judgment of this Court in
R.S.A.No.3221/2006 dated 14.08.2009 and the judgment dated
31.08.1995 in O.S.No.149/1995 and these judgments are
necessary for consideration of issues involved between the
parties. It is also contended that the copies of judgment in
O.S.No.149/1995 and R.A.No.25/2003 were not produced by the
respondent before the Trial Court in O.S.No.216/2004 during its
pendency. The judgment in R.S.A.No.3221/2006 was on
14.08.2009 i.e., after the disposal of the trail suit
O.S.No.216/2004. The learned counsel would contend that the
landed property involved in both the appeals are the same and
hence it is essential to permit the respondent to produce and
place them on record.
13. The statement of objection is also filed to
I.A.No.1/2024 by the learned counsel for the appellant, wherein
it is contended that O.S.No.216/2004 is filed on 09.08.2004 and
decreed on 21.04.2007. R.A.No.25/2007 is filed on 04.06.2007
and disposed on 13.09.2007. The documents sought to be
produced here under this application are the judgment and
decree in O.S.No.149/1995, which is filed on 31.08.1995 and the
judgment in that suit was pronounced on 17.03.2003, which is
prior to the suit filed by the respondent/plaintiff in
O.S.No.216/2004. He had no impediment to produce the said
judgment in the said suit, but he has not chosen to produce and
mark the said judgment in O.S.No.216/2004. Subsequently
even at the stage of first appeal he has not produced. The
present second appeal before this Court is filed on 06.11.2007
and the said second appeal was admitted on 14.08.2009 by
framing the substantial question of law and also interim order of
status quo was granted. If the respondent had any grievance,
he had all the opportunity to file application to produce these
present documents at that stage, but he has kept quiet till now.
The said second appeal was listed for final hearing from
01.03.2023, subsequently on 19.03.2024, belatedly produced
those documents and only with an intention to protract the
proceedings, he had filed the application. It is contended that
Order 41 Rule 27 of CPC, enables the party to file additional
evidence at the first and second appellate stage and the Court
should permit the party to file such additional evidence, if the
party appealing is able to persuade the Appellate Court that
there was a valid reason for not submitting such evidence at the
trial stage and the same has not been done and the conditions
imposed under Order 41 Rule 27 of CPC has not been complied.
It is also contended that he tried to take shelter under Section
56 of the Indian Evidence Act. In the instant case, there was
ample opportunity to the respondent to produce these
documents and mark the same in the original suit as exhibits as
the judgment and decree was much prior to the institution of the
present suit and hence they cannot be permitted to file the
additional documents.
14. Whether the respondent has made out the grounds
to allow the application filed under Order 41 Rule 27 of CPC?
15. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and keeping in view
the grounds urged in the appeal memo as well as respective
submission of the respective learned counsel, this Court has to
analyze the material within the scope of Section 100 of CPC.
This Court would like to consider whether the Court can consider
I.A.No.1/2024 for additional evidence. Having considered the
application, it is contended that that copy of R.S.A. could not be
produced since R.S.A. was disposed of in 2009 after filing of this
R.S.A. and there is a force in the contention of the learned
counsel for the respondent that the judgment passed in
R.S.A.No.3221/2006 was passed subsequently. But there is a
force in the contention of the learned counsel for the appellant
that the judgment and decree passed in O.S.No.149/1995 is
prior to the institution of the suit and the same has not been
produced and marked and no explanation to that effect except
stating and producing of the order passed by this Court in
R.S.A.No.3221/2006. It is important to note that the suit in
O.S.No.149/1995 is filed for the relief of partition and separate
possession by Basamma against the present plaintiff. Having
perused the averment of the said suit in terms of the order
passed by the Trial Court in O.S.No.149/1995 as well as
R.S.A.No.3221/2006, it is clear that the said Basamma filed the
suit in respect of land measuring 12 acres out of 29 acres 32
guntas in Sy.No.112 of Anabur Village in Jagalur Taluk and a
vacant site bearing khaneshmari No.61/2 of Anabur Village
claiming half share in the aforesaid properties. It is contended
that total extent of 29 acres 32 guntas originally belonged to one
Karekolada Kenchappa. The said Kenchappa had two sons
Thippanna and Rudrappa. One Mallamma was the wife of
Rudrappa while Gundamma was the wife of Thippanna.
Rudrappa and Mallamma had no issues. Thippanna and
Gundamma had two sons by name Hampanna and
Virupakshappa. The original plaintiff Basamma is the wife of
Hampanna while the defendant Virupakshappa is the second son
of Thippanna. After the death of Kenchappa and Rudrappa,
there was a partition among the family members as per the
memorandum of partition deed dated 03.05.1975, whereunder
the land measuring 12 acres 29 guntas in Sy.No.112, was
allotted to the share of Thippanna and Mallamma, while the
remaining extent was divided among Hampanna and
Virupakshappa. It is also the contention that under the said
partition deed, it was agreed between the parties that Thippanna
and Mallamma should enjoy the property allotted to their share
during their lifetime and after their death, the property should be
divided equally between Hampanna and Virupakshappa and
hence filed a suit for the relief of partition claiming half share on
the ground that Mallamma died on 03.06.1994. Upon the death
of Mallamma, the suit schedule properties devolved upon the
heirs of Hampanna and Virupakshappa. The said suit was
resisted and there was a Will in favour of Ravi Kumar and the
Trial Court comes to the conclusion that Mallamma had executed
the Will and the same has been proved and hence not granted
the relief in favour of Basamma and the same is confirmed in the
appeal and R.S.A.
16. These documents are not relevant for considering
the issues involved between the parties and the said suit is in
respect of the property of Malamma and not in respect of
property of Hampanna, which has been succeeded by his wife
Basamma on account of death of her husband Hampanna. There
is a force in the contention of the learned counsel for the
appellant that the said suit is in respect of property of Mallamma
and not in respect of the suit schedule property. Having
considered the orders also, the same is in respect of the
property of Mallamma and the said Mallamma had executed the
Will and hence not granted the relief. Hence, the very
contention of the learned counsel for the respondent that when
Basamma was not successful in getting the decree, even
assuming that adoption is proved, the appellant will not get any
right, cannot be accepted and hence those documents are not
necessary for deciding the issues and hence I.A.No.1/2024 filed
under Order 41 Rule 27 of CPC for production of additional
evidence is liable to be rejected.
17. Now keeping in view the contentions of the learned
counsel for the appellant as well as the substantial questions of
law framed by this Court with regard to the deed of adoption is
concerned, this Court would like to refer to Section 16 of the
Hindu Adoption and Maintenance Act, 1956, which reads as
follows:
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.
18. In the case on hand, it has to be noted that adoption
deed of the year 1995 was a registered document and in order
to prove the said adoption deed, D.W.2 and D.W.7 were
particularly examined before the Trial Court. No doubt, D.W.2
speaks with regard to the registration of the document Ex.D.12
and the same was registered in the year 1995 and his signature
is also identified as Ex.D.12(a) and also the signature of the
adopted mother Basamma is also marked as Ex.D.12(b) and
signature of natural mother Revamma is marked as Ex.D.12(c)
and one of the witness Siddappa also signed the document
marked as Ex.D.12(d). In the chief evidence, it is deposed that
in the year 1995, the adoption was confirmed. In the cross-
examination, he admits that he cannot tell in which year the
defendant was taken on adoption and also he cannot tell how
many pages Mallamma had signed, but he identifies the
signature of Mallamma. Though he has not spoken anything
about in which year the adoption was taken, but he is a
signatory to the document of Ex.D.12.
19. D.W.7 is also a signatory to the adoption deed and
he also speaks about the defendant is living along with his
adoptive parents and he also identified his signature as
Ex.D.12(d) and he says that he attended the function regarding
adoption when the defendant was two years old. But in the
cross-examination, he says that in the year 1995, he was taken
in adoption and he cannot tell how many persons have signed
and how many places he has signed Ex.D.12 and he denies the
suggestion as no such adoption was taken place. Nothing is
elicited with regard to no such adoption was taken place.
20. This Court would like to refer to the judgment of this
Court in the case of VEERABHADRAYYA R. HIREMATH (D) BY
LRS. v. IRAYYA A.F. BASAYYA HIREMATH reported in 2006
AIHC 1734, wherein also adoption was challenged by the
plaintiff, who is the brother of the husband of Nanjamma. In the
present case also the adoption is questioned by the plaintiff, who
is the brother of Hampanna. In the said judgment it is held that
except the adoptive parents and adoptive son, others have no
locus standi to question the validity of the adoption deed. In the
case on hand, the plaintiff being the brother of Hampanna,
cannot question the adoption. Hence, this judgment is aptly
applicable to the facts of the case on hand. It is important to
note that the principles laid down by the co-ordinate Bench of
this Court has also been considered in the judgment of this Court
in R.S.A.No.200036/2014 dated 10.10.2023. Hence, the plaintiff
cannot question the adoption and validity of adoption deed and
the plaintiff has no locus standi to question the same. This Court
also considered the said principle in R.S.A.No.498/2007 relied
upon by the learned counsel for the appellant.
21. It is important to note that the presumption as to the
registered document relating to adoption is concerned and in this
case also adoption deed came into existence in 1995, wherein
only confirmed the taking of earlier adoption. It is stated in the
document that when the appellant was two years old, he was
taken in adoption. First of all, the plaintiff cannot question the
adoption and he has no locus standi. Apart from that, adoption
deed is a registered document, which came into existence in
1995 and at that time, both the adoptive mother and natural
mother were alive and their respective husbands were not alive
and the same is mentioned in the document of adoption deed.
The witnesses, particularly D.W.2 and D.W.7 have identified the
signature of the adoptive mother and natural mother of the
child, which was given on adoption and the signatures of the
witnesses were also identified. Admittedly, Basamma passed
away in 2003 and the present suit is filed by the plaintiff
immediately after the death of Basamma in the year 2004. The
document of 1995 was registered and there is a presumption
and unless the same is disproved, the document of Ex.D.12
prevails. It is important to note that in the year 1998, the said
adoptive mother Basamma as well as adopted son i.e., the
defendant, both of them have entered into partition and the said
document was registered and the same is marked as Ex.D.13.
In order to prove the said document, the witness was examined
before the Trial Court as D.W.6.
22. It is important to note that the Apex Court in the
judgment in the case of JAISINGH v. SHAKUNTALA reported
in (2002) 3 SCC 634, held that actual giving and taking is
essential. It is relevant to state that this Section, however, does
not prescribe any particular mode or manner for the act of giving
and taking, what is essential is that there should be some overt-
act to signify the delivery of child from one family to another. In
the case on hand also, the defendant contended that he was
adopted when he was two years old. When the adoptive mother
as well as natural mother both of them have confirmed the
earlier adoption and got registered the document of adoption in
terms of Ex.D.12 and also in view of the conditions under
Section 11 of the Act, the same is only with an intent to transfer
the child from one family of its birth to the family of its
adoption. The physical act of giving and receiving was
absolutely necessary for the validity of adoption under the law as
it exists before coming into force of the present Hindu Adoption
and Maintenance Act and the position under the Act is identical
and when both the adoptive mother and natural mother not
disputes the same and confirmed under Ex.D.12, only an overt-
act is required and accordingly confirmed the same under
Ex.D.12. It is also important to note that consequent upon the
registered document of partition, all the properties stands in the
name of the adopted son in view of the partition taken place in
1998. Only after the death of Basamma, the plaintiff contended
that there was no any adoption. I have already pointed out that
others have no locus standi to question the adoption and the
document of Ex.D.12 is clear that both the mothers have
confirmed the earlier adoption in the registered document of
Ex.D.12. The presumption is also clear that 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.
23. In the case on hand, the defendant has proved the
same by examining the registered document, which has been
attested by D.W.2 and D.W.7 and these are the aspects, which
has not been taken note of by the Trial Court and the First
Appellate Court and the very proviso of Section 16 of the Act has
not been considered. The Trial Court comes to the conclusion
that no document evidence the fact of taking of adoption and the
registered document was ignored and merely because the school
certificate and other documents have not been placed before the
Court, the same cannot be a ground to come to the conclusion
that adoption has not been proved when there is a presumption
under Section 16 of the Act, as discussed above. Both the Trial
Court and the First Appellate Court considered mainly on the oral
evidence on record and ignored the documentary evidence and
the document was registered in the year 1995 and subsequently
also in terms of Ex.D.13 in the partition deed specifically
mentioned that there was earlier adoption. The suit is also filed
in 2004 after nine years of the registration of the document of
adoption and after seven years of partition, which was taken
place between the adoptive mother and adopted son and all the
revenue records discloses with regard to the payment of tax as
well as standing of revenue records in the name of the adopted
son. It is important to note that P.W.1 in the cross-examination
categorically admitted that earlier there was a partition in the
year 1975 and thereafter Hampanna was in possession and after
the death of Hampanna, his wife Basamma was in continuous
possession and only contention is that adoption deed was
created. He also categorically admits that after the death of
Hampanna and Basamma, he did not make any efforts to
transfer the property to his name and also he did not challenge
the transfer of khatha in favour of the defendant and he
categorically admits that he is not having any document to show
that the suit schedule property is in his possession. It is
important to note that P.W.1 even denies to the extent of the
name of natural mother Revamma and also wife of his brother
i.e., Basamma both of them are sisters and the Court has to take
note of the conduct of P.W.1. It is emerged in the evidence that
the natural mother and adoptive mother are own sisters. The
possession is also with the appellant and P.W.1 categorically
admits that he is not having any documents to show that he is in
possession of the suit schedule property. Though he claims that
after the death of Basamma, he is in possession of the suit
schedule property, nothing is placed on record. Both the Courts
failed to take note of this aspect and instead of considering the
documents of Exs.D.12 and 13, relies upon the oral evidence of
the plaintiff.
24. The very contention of the learned counsel for the
respondent that in view of the dismissal of the earlier suit filed
by Basamma, this appellant will not get any right, cannot be
accepted when already there was a partition between the
plaintiff and Hampanna in the year 1975 and thereafter
Hampanna was in exclusive possession. It is an admitted fact
that after the death of Hampanna, his wife Basamma was in
continuous possession. The fact that Hampanna died in the year
1992 itself is not in dispute and all the documents from 1992 to
1998, till the date of partition in terms of Ex.D.13, stand in he
name of Basamma. The fact that subsequent to the partition,
mutation was changed in favour of the defendant and the
revenue records stands in the name of the defendant even as on
the date of filing of the suit, is not disputed. All theses factors
have not been taken note of by both the Courts and instead of
comes to the conclusion that no school documents and other
documents are produced to prove the factum of adoption. The
registered document of adoption and subsequent to the adoption
also there was a partition between Basamma and the defendant
and the said document is registered document Ex.D.13 and both
of them were not considered by the Courts below. Considering
the material on record, the presumption under Section 16 of the
Hindu Adoption and Maintenance Act, has not been rebutted by
the plaintiff. Hence, the substantial questions of law framed by
this Court is answered accordingly in coming to the conclusion
that the Courts below are not justified in not drawing
presumption under Section 16 of the Act, with regard to the
factum of adoption of the defendant by Basamma and her
husband in the light of Ex.D.12 registered adoption deed dated
18.01.1995. The very finding of both the Courts that the
defendant has failed to prove the adoption is nothing but
perverse finding as a result of drawing improper inference by
considering only the oral evidence of the witnesses examined in
proof of adoption and failed to take note of the documentary
evidence of Exs.D.12 and 13 and hence the judgment and
decree of the Trial Court is liable to the set aside by allowing this
second appeal since both the Courts failed to draw the
presumption under Section 16 of the Act in not relying upon the
document Ex.D.12 and accordingly I answer the substantial
question of law.
25. In view of the discussions made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree of the Trial Court
dated 21.04.2007 passed in O.S.No.216/2004
and the judgment and decree of the First
Appellate Court dated 13.09.2007 passed in
R.A.No.25/2007, are set aside. Consequently,
the suit filed by the plaintiff is dismissed.
(iii) The application filed under Order 41 Rule 27 of
CPC is hereby rejected.
Sd/-
JUDGE
MD
