Karnataka High Court
M.G.Purushotham vs N.K.Srinivasan on 16 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.498/2007 (DEC/INJ)
BETWEEN:
1. M.G.PURUSHOTHAM
AGED ABOUT 60 YEARS
S/O LATE GURUVAIAH
RESIDENT OF NO.1013
I CROSS, UMA TALKIES ROAD
MYSURU-570001
SINCE DEAD BY LRS
1(a) SMT.LALITHA
W/O LATE SRI M.G.PURUSHOTHAM
AGED ABOUT 60 YEARS
1(b) SRI P.LOKESH
S/O LATE SRI M.G.PURUSHOTHAM
AGED ABOUT 43 YEARS
1(c) SRI P.RAGHAVAN
S/O LATE SRI M.G.PURUSHOTHAM
AGED ABOUT 42 YEARS
APPELLANTS 1(a) TO 1(c) R/AT
D/No.1013, UMA TALKIES ROAD
LUSKAR MOHALLA, MYSURU-570001.
1(d) SMT. P.SASHIKALA
W/O SRI SUDARSHAN
2
D/O LATE SRI M.G.PURUSHOTHAM
AGED ABOUT 45 YEARS
R/AT NO.131, 1ST R BLOCK
RAJAJINAGAR
BENGALURU-560010.
(AMENDED VIDE COURT ORDER DATED 17.02.2022)
... APPELLANTS
[BY SRI G.B.NANDISH GOWDA, ADVOCATE]
AND:
1. N.K.SRINIVASAN
AGED ABOUT 50 YEARS
S/O LATE KARIGOWDA @ KARIYAPPA
RESIDING AT NO.97/3, 17 CROSS
I BLOCK, RAJAJINAGAR
BANGALORE-560010.
SINCE DEAD BY LRS.
1(a) SMT.SOWBHAGYA
AGED ABOUT 79 YEARS
W/O LATE N.K.SRINIVASAN
1(b) SRI N.S.SATISH
AGED ABOUT 50 YEARS
S/O LATE N.K.SRINIVASAN
1(c) SRI N.S.HARISH
AGED ABOUT 46 YEARS
S/O LATE N.K.SRINIVASAN
RESPONDENTS 1(a) TO 1(c)
ARE ALL RESIDENTS
OF No.E-1/124, 5TH CROSS
SYNDICATE BANK COLONY
3
BANNERGHATTA ROAD
BANGALORE-560 076.
1(d) SMT.SARASWATHI
AGED ABOUT 65 YEARS
1(e) SRI N.S.SOMASHEKAR
AGED ABOUT 43 YEARS
S/O LATE N.K.SRINIVASAN
1(f) SRI CHANDRASHEKAR
AGED ABOUT 40 YEARS
S/O LATE N.K.SRINIVASAN
SINCE DECEASED BY RESPONDENTS
1(a) TO (e) AND (g) ARE THE LEGAL
REPRESENTATIVE OF DECEASED R1(f)
RESPONDENTS 1(d) TO 1(f) ARE ALL
RESIDING AT NO.97/3, 17TH CROSS
FIRST BLOCK, RAJAJINAGAR
BANGALORE-560 010.
1(g) SMT. GEETHA
AGED ABOUT 45 YEARS
W/O KRISHNAMURTHY
RESIDENT OF NO.58, 3RD CROSS
CHIKKAVEERANNA ROAD
BANNIMANTAP
MYSORE-570015.
(AMENDED VIDE COURT ORDER DATED 9.4.2019)
2. THE TAHSILDAR
MADDUR TALUK, MADDUR,
MANDYA DISTRICT-571428. ... RESPONDENTS
[BY SRI SAGAR B.B., &
SRI SATHISH M.DODDAMANI, ADVOCATES FOR R1(d, e, g);
4
SMT. M.V.ADHITHI, AGA FOR R2;
VIDE ORDER DATED 06.02.2012,
NOTICE TO R1(a) HELD SUFFICIENT
NOTICE TO R1(b & e) HELD SUFFICIENT
VIDE ORDER DATED 16.04.2012,
NOTICE TO R1(b & c) ARE HELD SUFFICIENT
VIDE ORDER DATED 06.03.2020,
R1(a to e & g) ARE TREATED AS LRS OF DECEASED R1(f)]
THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 10.11.2006 PASSED IN R.A.NO.
186/2004 ON THE FILE OF THE PRL.DISTRICT JUDGE, MANDYA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 16.7.2004 PASSED IN OS.NO. 122/2000
ON THE FILE OF THE CIVIL JUDGE (SR.DN.), MADDUR.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondents.
2. The case of the plaintiff before the Trial Court is that
the plaintiff is the native of Nidagatta Village, owning the
agricultural lands bearing Sy.No.89/1, measuring 1.16 guntas,
Sy.No.90/1 measuring 1.26 guntas, Sy.No.95 measuring 2
acres. 'A', 'B' and 'C' schedule properties are ancestral, apart
from the land bearing Sy.Nos.110/3, 115/2 extending 2.06
guntas, which is also ancestral. 'A' and 'B' schedule properties
fell to the share of late T. Thammaiah, the half brother of
plaintiff as per the registered release deed dated 05.05.1943.
The 'B' schedule was acquired out of the nucleus from 'A'
schedule properties. Except Sy.No.95, all other properties
mentioned above were ancestral properties which late Karigowda
@ Kariyappa delivered to his share after separation from the
brothers Puttaswamy Gowda and Pape Gowda. Late Karigowda,
father of plaintiff had two wives by name late Thimmamma and
Venkatamma. Through Thimmamma, one son late T. Thimmaiah
was born. From second wife late Venkatamma, late
K. Thammaiah and plaintiff Srinivasan were born. After the
release deed dated 05.05.1943, late Thimmaiah was living
separately along with wife Nanjamma, till his death in 1954.
Late Karigowda, late K. Thammaiah and plaintiff lived as co-
parceners till the death of father Karigowda, who died in 1950.
Thereafter, late K. Thammaiah also died in the year 1964
intestate and issueless as a bachelor. Accordingly, plaintiff
became the sole surviving co-parcener of the undivided family of
late Karigowda @ Kariyappa. Late T. Thammaiah died issueless
in the year 1954, leaving behind him, his widow Nanjamma and
plaintiff. Nanjamma entitled only for maintenance and plaintiff
as a half brother entitled for succession to 'A', 'B' and 'C'
schedule properties by virtue of the law as prevailed then.
Plaintiff was taking care of widow Nanjamma and jointly enjoying
'A', 'B' and 'C' schedule properties and administering the
properties. Plaintiff was in Government Service, visiting village
periodically and taking care of late Nanjamma, till her death on
05.07.1995. The defendant happens to be the brother is son of
late Nanjamma. Therefore, he purports to have taken advantage
of his relationship and lonely life of late Nanjamma, he has
manipulated some records to claim succession rights to 'A' and
'B' schedule properties. One Guruvaiah, father of the defendant,
who is also brother of late Nanjamma created spurious adoption
deed dated 30.05.1954, that shows late Nanjamma had taken
defendant in adoption. A plain reading of the same establish
that, it is in the nature of an agreement between Nanjamma and
defendant, who was minor aged about 8½ years, who was not
represented by a guardian. Adoption deed does not confer any
right to the defendant. He remains only as the son of late
Guruvaiah. He cannot claim succession rights to the plaintiff
schedule properties. Defendant applied for transfer of khatha in
respect of suit schedule properties. The same was objected by
the plaintiff.
3. After the release deed dated 16.03.1943, the khatha
entries made in the name of late T. Thammaiah. However, the
khatha was subsequently changed in the name of late
Nanjamma in 1989. Defendant fraudulently got the khatha
transferred in his name in collusion with revenue official. Late
Nanjamma died on 05.07.1995 in private hospital at Mysore.
She was cremated at Mysore and rituals also got performed at
residence of the defendant for the sake convenience. On the 5th
day ceremony, the plaintiff learnt about the clandestine
movements of the defendant to sell away 'A' and 'B' schedule
properties. He then brandished a purported adoption deed
proclaiming that he is the successor to the schedule properties
by virtue of adoption deed. Plaintiff waited till 15.07.1995 i.e.,
11th day ceremony of late Nanjamma and given representation
to the Tahsildar, Maddur. Then plaintiff issued legal notice to the
defendant. In the year 1954, Hindu Adoption Act had not come
into vague and therefore, the Hindu Law then prevailing did not
warrant an adoption deed as such, defendant was 8½ year old at
that time, which was quite against the law then prevailing.
There was no giver of the so called adopted child. The father of
the defendant was not a party to the deed and the document is
not valid. Hence, filed the suit seeking the relief that properties
were reverted to the co-parcenery family of late T. Thammaiah
i.e., the plaintiff, who is a half brother of the defendant. It is
also contended that adoption deed is null and void and the
plaintiff is in possession of the properties and hence, he is
entitled for the relief of declaration and permanent injunction.
4. The defendant No.2 was a formal party and he has
not appeared and placed exparte. The defendant No.1 appeared
through counsel and filed written statement, wherein he
admitted that the properties were taken by T. Thammaiah and
executed release deed and also admitted the relationship as
stated by the plaintiff. It is denied that plaintiff and late
Nanjamma, the widow of late T. Thammaiah were enjoying the
'A', 'B' and 'C' schedule properties and administering the
properties. It is contended that the suit is barred by limitation.
Schedule 'C' item is self-acquired property of deceased
Nanjamma. T. Thammaiah died in 1964 leaving behind him, his
wife Nanjamma without issues. She succeeded to the properties
as sole heir prior to his death. T. Thammaiah has given authority
to Nanjamma to adopt defendant No.1, who was already under
the care of T. Thammaiah. Accordingly, Nanjamma adopted
defendant No.1 and continued to live as mother and son. The 'B'
and 'C' schedule properties are self-acquired properties of
Nanjamma, which she got under Darkasth and by purchase
respectively. T. Thammaiah became separate from his family
and began to cultivate lands he took under release deed. They
were succeeded to by Nanjamma and his adopted son by
defendant No.1. Defendant No.1 and adoptive mother
Nanjamma sold three items of property under three different
sale deeds dated 29.02.1956. Defendant No.1 performed all the
rituals of Nanjamma. He succeeded to the suit schedule
properties. Plaintiff is stranger to the family of Nanjamma and is
not in possession of these properties. Hence, prayed the Court to
dismiss the suit.
5. The plaintiff, after filing of written statement, filed
rejoinder and contended that after the death of late T.
Thammaiah, the suit schedule items were reverted back to the
co-parcenery family members of late T. Thammaiah. Nanjamma
had only maintenance rights as per Karnataka Hindu Law
Womens Rights Act, 1933 and therefore, the plaintiff as the sole
surviving co-parcener of the family of late T. Thammaiah
succeeded to his estate i.e., 'A' and 'B' schedule properties. It is
contended that obsequious performed at the cost of plaintiff and
remained by contribution from relatives.
6. The Trial Court, taking note of the pleadings of the
plaintiff and the defendants, framed the following issues:
"1. Whether the suit properties were reverted back
to the co-parcenery family members of late T.
Thammaiah?
2. Whether the plaintiff proves that the alleged
adoption deed dated 30.05.1954 relating to
defendant No.1 is null and void?
3. Whether the plaintiff further proves that he is
the absolute owner in possession of A and B
schedule properties?
4. Whether the plaintiff proves the alleged
interference of the defendant No.1 over the 'A'
and 'B' schedule properties?
5. Whether the plaintiff is entitled for the relief of
declaration?
6. Whether the plaintiff is entitled for the relief of
permanent injunction?
7. To what order or relief, the plaintiff is entitled
for?"
7. In order to prove the case, the plaintiff examined
himself as P.W.1 and examined three witnesses as P.Ws.2 to 4
and got marked the documents as Exs.P1 to P28. On the other
hand, the defendant No.1 examined himself as D.W.1 and
examined one witness as D.W.2 and got marked the documents
as Exs.D1 to D18.
8. The Trial Court, having considered both oral and
documentary evidence placed on record, answered all the issues
as 'affirmative', in favour of the plaintiff and granted the relief of
declaration declaring the plaintiff as the absolute owner of 'A'
and 'B' schedule properties and further declared the alleged
adoption deed as null and void and not binding on the plaintiff.
The Trial Court also directed the defendant No.1 or any person
on his behalf is restrained from interfering over plaintiff's
peaceful possession and enjoyment over 'A' and 'B' schedule
properties.
9. Being aggrieved by the judgment and decree of the
Trial Court, the present appellant has filed an appeal before the
First Appellate Court in R.A.No.186/2004 and considering the
grounds urged in the appeal, the First Appellate Court
formulated the following points for consideration:
"1) Whether the defendant has proved that he is
duly adopted son of Nanjamma and
T. Thammaiah and that original of Ex.D2 is the
duly and validly executed adoption deed?
2) Whether the defendant has proved that suit is
barred by limitation, particularly as regards
prayer for cancellation of adoption deed?
3) Whether the plaintiff has proved that he is the
owner in possession of the suit properties
being the reversioner of the family of
T. Thammaiah?
4) Whether the impugned judgment and decree
call for interference in this appeal?
10. The First Appellate Court answered both point Nos.1
and 2 as 'negative', point No.3 as 'affirmative and point No.4 as
'negative', in coming to the conclusion that the judgment and
decree of the Trial Court does not call for interference and
dismissed the appeal. Being aggrieved by the judgment and
decree of the Trial Court and dismissal of appeal by the First
Appellate Court, the present second appeal is filed before this
Court by the appellant/defendant No.1.
11. The main contention of the appellant/defendant No.1
in this appeal is that there is no dispute with regard to the fact
that original propositus of the family is one Karigowda. Learned
counsel also would submit that no dispute with regard to the fact
that he had two wives by name Thimmamma and Venkatamma.
The first wife Thimmamma had no issues through Karigowda and
through second wife Venkatamma, Karigowda had two sons i.e.,
the plaintiff and another son by name Srinivasan, who died as
bachelor and plaintiff is the only son, who remained to said
Karigowda through second wife. It is also the contention that
there was a release deed of the year 1943 and no dispute to that
effect. The very contention of the plaintiff before the Trial Court
is that the adoption was not brought to the notice of the plaintiff
and date on which the adoption was made is also not pleaded
and the ceremony in this regard and the persons who were
present is not pleaded and proved. Learned counsel for the
appellant would vehemently contend that the Trial Court
accepted the case of the plaintiff without considering both oral
and documentary evidence placed on record. The counsel would
vehemently contend that Ex.D2 is the document of adoption
deed and natural father is the attester of the said document.
The defendant No.1 being an adopted son became the absolute
owner of the suit schedule properties. It is also not in dispute
that adoption deed was registered in the year 1954 itself and the
same is prior to Hindu Adoption and Maintenance Act, 1956.
Learned counsel also would vehemently contend that the
revenue records also reveal that after the death of Nanjamma's
husband, the property is transferred in the name of Nanjamma
and thereafter, the property was changed in the name of the
defendant No.1.
12. The counsel also would vehemently contend that the
very judgment and decree of the Trial Court is erroneous and
failed to take note of the fact that deed of adoption came into
existence in the year 1954 itself. The counsel also would
vehemently contend that very Nanjamma sold three properties
under different sale deeds on 29.02.1956, wherein a reference
was made with regard to defendant No.1 is her adopted son.
Learned counsel would vehemently contend that the certified
copy of the adoption deed and three sale deeds are also
produced before the Court as Exs.D2 to D5 and contend that the
very approach of the Trial Court and the First Appellate Court is
erroneous. The counsel would vehemently contend that Hindu
Womens Rights to Property Act, 1937 is very clear that a widow
can take adoption. Learned counsel in his argument would
vehemently contend that under Section 9 of the Karnataka Hindu
Law Women's Rights Act, 1933 viz., Authority to adopt, a
provision is made that in the absence of an express prohibition in
writing, by the husband, his widow, or, where he has left more
widows than one, the senior most of them shall be presumed to
have his authority to make an adoption. It is contended that
both the Courts have failed to take note of the Hindu Womens
Rights to Property Act, 1937 and the Karnataka Hindu Law
Women's Rights Act, 1933. The counsel would contend that
Section 9 of the Hindu Women's Rights to property Act permits a
widow to take adoption. The counsel also would vehemently
contend that suit is barred by limitation and Section 14 applies
subsequent to Hindu Succession Act, 1956. It is contended that
both the Trial Court and the First Appellate Court not considered
the pleadings and the fact that certified copies are produced
before the Court, since originals were not available. The counsel
also would vehemently contend that both the Courts failed to
take note of the material available on record i.e., both oral and
documentary evidence placed on record.
13. Learned counsel for the appellant/accused No.1 in
support of his argument, relied upon the judgment of the Apex
Court in ERAMMA AND OTHERS VS. MUDDAPPA reported in
AIR 1966 SC 1137 and brought to notice of this Court Para
No.4, wherein the Apex Court has discussed on the question of
authority the law in the State of Mysore is to be found in Mysore
Act 10 of 1933 entitled Hindu Law Womens Rights Act, 1933.
14. The counsel also relied upon the judgment of the
Apex Court in SRI LAKHI BARUAH AND OTHERS VS. SRI
PADMA KANTA KALITA AND OTHERS reported in AIR 1996
SC 1253 and brought to notice of this Court Para Nos.15 to 17
with regard to Section 90 of the Evidence Act i.e., presumption
as regards genuineness of the document of 30 years old.
15. The counsel also relied upon the judgment of the
Apex Court in GOSWAMI SHREE VALLABHALAJI VS.
GOSWAMINI SHREE MAHALAXMI BAHUJI MAHARAJ AND
ANOTHER reported in AIR 1962 SC 356 and brought to notice
of this Court Para No.24 of the judgment, wherein the Apex
Court has observed that adoption is invalid in the absence of
consent by the husband's sapindas must be rejected, for the
simple reason that the letter Ex.115 and the evidence of the
plaintiff's own witnesses justify the conclusion that in his life
time Annirudhalalji authorized Mahalakshmi Bahuji Maharaj to
make an adoption after his death though at the same time
indicating his preference for one particular boy. The necessity of
consent of the husband's sapindas would arise if the Madras
School of Mitakshara law was applicable only where there was no
authority from the husband.
16. The counsel also relied upon the judgment of this
Court in R.S.A.NO.200036 OF 2014 dated 10.10.2023 with
regard to presumption that in the absence of any material
evidence of giving and taking ceremony as mandate under
Section 11 of the Hindu Adoption and Maintenance Act, 1956 as
well as Section 16 of the Hindu Adoption and Maintenance Act,
1956 with regard to presumption as to the registered documents
relating to adoption and comes to the conclusion that, except the
genitive parents, adoptive parents and the adoptive son, others
have no locus standi to question the validity of the adoption
deed. The counsel referring this judgment would vehemently
contend that the plaintiff cannot question the adoption deed,
since he is not a genitive parent or an adoptive parent or an
adoptive son and he has no locus standi to question the same.
17. Learned counsel for the appellant referring these
judgments and Hindu Womens Rights to Property Act, 1937 and
Section 9 of the Karnataka Hindu Law Women's Rights Act,
1933, would vehemently contend that the very approach of the
Trial Court and the First Appellate Court is erroneous and it
requires interference at the hands of this Court.
18. Per contra, learned counsel for the respondents
would vehemently contend that the propositus of the family
Karigowda had two wives i.e., Thimmamma and Venkatamma
and through first wife had a son by name T. Thammaiah and
through the second wife, he had two sons i.e., a son by name
Srinivasan, who died as bachelor and the plaintiff. The counsel
would vehemently contend that in terms of the release deed,
two items of the properties had fallen to the share of
T. Thammaiah. The counsel also would vehemently contend that
the adoption and the date on which adoption was made was not
brought to the notice of the plaintiff at any point of time and
with regard to the ceremony of adoption and the persons who
were present, nothing is pleaded and proved. The document of
Ex.D2 is relied upon by the defendant No.1 as a natural father
and attester of the document and he is not a party to adoption.
The defendant No.1 was aged 8 years at the time of alleged
adoption and document of Ex.D2 is not a valid document and no
pleadings with regard to the consent and any ceremony of giving
and taking the adoption. Hence, it is contended that the Trial
Court has appreciated both oral and documentary evidence
placed on record and contend that under Karnataka Hindu Law
Women's Rights Act, 1933, a widow can take adoption but, elder
son cannot be given as adoptive son and both the Courts have
extensively considered the material on record. It is also
contended that the First Appellate Court in Para Nos.14 to 21 of
the judgment discussed in detail as regards the venue where the
adoption had taken place and ceremony of adoption has not
been stated. The adoption is not considered in other matter and
based on the earlier documents, the defendant cannot prove the
adoption and none were having personal knowledge i.e., either
the D.W.1 or the D.W.2 and no iota of evidence to prove the
adoption. Hence, the adoption was not in the knowledge and
therefore, no limitation arises and the defendant No.1 is a
stranger. It is contended that though Nanjamma as a widow is
entitled, but when there is no material to prove the adoption, the
question of considering the defendant No.1 as an adopted son
does not arise and both the Courts have considered the same in
detail and there is no merit in the second appeal.
19. In reply to the arguments of the learned counsel for
the respondents, learned counsel for the appellant would
vehemently contend that adoption was made prior to 1954 and
the document of Ex.D2 came into existence in the year 1954
itself and the very document of Ex.D2 speaks about the consent
and an authority given to Nanjamma to take adoption. Learned
counsel would vehemently contend that plaintiff cannot question
the adoption and he was not having any locus standi to
challenge the same.
20. This Court, having considered the grounds urged,
while admitting the appeal, framed the following substantial
questions of law which reads as hereunder:
i) Whether the Courts below are right in rejecting
the adoption deed and the adoption of the
appellant by Nanjamma for and on behalf of
her husband T. Thammaiah when the appellant
has produced in support of his plea of adoption
documents Exs.D1 to D18?
ii) Whether the Courts below are right in putting
the plaintiff in strict burden of proof for an
adoption which has taken place in the year
1954 and the same came to be challenged
before the Court after a lapse of 42 years in
the year 1996?
iii) Whether the Courts below are right in insisting
the appellant to prove the fact of adoption with
the strict rules of evidence after a lapse of
more than 50 years when all the oral evidence
and other evidences are not available due to
lapse of time?
iv) Whether the Courts below are right in holding
that the respondent is a coparcener entitled for
ownership of the Plaint Schedule 'A' and 'B'
properties when there was partition between
the coparceners in the year 1943 which is
evidenced by way of a registered release deed
executed by T. Thammaiah the adoptive father
of the appellant?
v) Whether the Courts below are right in
declaring the ownership rights of the plaint
schedule 'A' and 'B' properties in favour of the
First Respondent when Section 14 of the Hindu
Succession Act gives an absolute right to
Nanjamma after 1956 over the properties held
by her?
Substantial Questions of law (i) to (v):
21. Having taken note of the substantial questions of law
framed by this Court and the material available on record, this
Court would like to make a mention of undisputed facts. It is not
in dispute that there was a release deed in the year 1943
executed by T. Thammaiah and the properties were vested with
T. Thammaiah after 1943 and he was in possession of the
properties and living separately. It is also not in dispute that the
original propositus of the family had two wives and
T. Thammaiah had no issues through his wife Nanjamma. It is
the case of the plaintiff that property reverts back to him, since
said Nanjamma died in the year 1995. It is the claim of the
plaintiff that after the death of said T. Thammaiah, he has taken
care of Nanjamma throughout her life and he was in joint
possession with said Nanjamma and he was cultivating the suit
'A' and 'B' schedule properties. It is also not in dispute that
since the 'C' schedule property is self-acquired property of
Nanjamma, no relief is granted in respect of 'C' schedule
property in favour of the plaintiff.
22. The plaintiff in order to prove the case, examined
himself as P.W.1 and also examined three witnesses as P.Ws.2
to 4 to establish that he is in possession of the properties. On
the other hand, the defendant No.1, who claims that he is an
adopted son of Nanjamma, in order to prove his contention,
relied upon Exs.D1 to D18 that adoption had taken place in the
year 1954 itself i.e., prior to Hindu Succession Act, 1956. It is
also his contention that immediately after the adoption, three
properties were sold by Nanjamma in the year 1956 i.e., on
29.02.1956 itself, wherein she has mentioned that defendant
No.1 is her adopted son and documents are produced before the
Court to that effect as Exs.D3 to D5. It is also the contention of
the learned counsel for the appellant that the Trial Court
committed an error in considering the strict compliance of
adoption and failed to take note of the fact that adoption has
taken place in the year 1954 itself. The counsel also would
vehemently contend that in terms of the Karnataka Hindu Law
Women's Rights Act, 1933, Nanjamma has right to take adopt
defendant No.1 as her son. The very conclusion reached by both
the Courts that a widow has no right to adopt is against law.
23. The other contention is that suit is barred by
limitation is not properly considered and Section 14 applies
subsequent to Hindu Succession Act, 1956. Having considered
the reasoning given by the Trial Court and the First Appellate
Court and also the contention urged by the learned counsel for
the appellant, the counsel mainly relied upon Karnataka Hindu
Law Women's Rights Act, 1933. This Court would like to refer
Section 9 of the said Act, which reads as hereunder:
"9. Authority to adopt:- (1) In the absence
of an express prohibition in writing, by the husband,
his widow, or, where he has left more widows than
one, the senior most of them shall be presumed to
have his authority to make an adoption
(2) No adoption made by widow shall,-
(a) divest her of her estate in any stridhana
property, other than such as she may have taken by
inheritance from her husband; or
(b) affect her right to obtain at any time, at her
option, either maintenance charged upon the
property inherited from her husband, or a separate
share therein equal to one-half of the share of the
adopted son; or
(c) affect her right to manage such property, as
well as to act as the guardian of the person of the
adopted son, during his minority.
(3) An arrangement made prior to or at the time of
an adoption as aforesaid, whereby the adopted son if
he be a major, or his natural father or mother if he
be a minor, agrees to his rights in or over the
property of the adoptive father being limited,
curtailed, or postponed in the interests of the
adoptive mother, shall be valid and binding on the
adopted son".
24. Learned counsel for the appellant in support of this
provision, relied upon the judgment of the Apex Court in
ERAMMA AND OTHERS VS. MUDDAPPA reported in AIR
1966 SC 1137, wherein the Apex Court has held with regard to
authority of a widow for adoption under Hindu Law, law in State
of Mysore, under Mysore Hindu Law Women's Rights Act (10 of
1933), Section 9 presumption is that widow has authority and
held that the said presumption is not rebutted. The Mysore
Hindu Law Womens Rights Act (10 of 1933) and Section 9 is
very clear that, in the absence of an express prohibition in
writing by husband, his widow or where he has left more widows
than one, the senior most of them shall be presumed to have his
authority to make an adoption. Ordinarily authority to adopt will
be presumed. The law in this respect is thus in line with the law
in the Bombay State. Ordinarily this presumption can be
rebutted by establishing that the husband had expressly
prohibited her from making an adoption. Such a prohibition
could be established either by direct evidence or by
circumstantial evidence. Long delay in making the adoption is
explicable by reason of the fact that the widow was in her
twenties when her husband died and it was natural that at such
an early age she would not take the risk of divesting herself of
her interest in the property by making an adoption and leave
herself at the mercy of the adopted son, and the fact that later
the Mysore Hindu Law Women's Rights Act came into force,
under Section 8 of which the widow of a deceased co-parcener
belonging to the joint Hindu family was given a right to share in
the family property, would not rebut the presumption. The law
as it stood in Mysore at the relevant time did not require a
widow to proclaim to anyone that she had an authority to adopt
a son to her husband. The law on the other hand was that she
could make an adoption unless she was expressly prohibited
from doing so. The fact that no mention of authority was made
in the deed, therefore would not go to rebut the presumption.
Similarly the mere existence of a daughter is not sufficient to
rebut the presumption and detailed discussion was made in Para
No.4 of the judgment on the question of authority, the law in the
State of Mysore is to be found in Mysore Act 10 of 1933 entitled
Hindu Law Woman's Rights Act, 1933 and Section 9(1) of the
Act.
25. Having read Section 9 of the Hindu Law Womans
Rights Act, 1933 as well as the judgment of the Apex Court, it is
clear that under Mysore Act 10 of 1933, a widow has authority
for adoption and presumption has to be rebutted. The principle
is also very clear that the law as it stood in Mysore at the
relevant time did not require a widow to proclaim to anyone that
she had an authority to adopt a son to her husband. The law on
the other hand was that she could make an adoption unless she
was expressly prohibited from doing so, there was no express
prohibition in taking adoption of defendant No.1, who is none
other than the son of brother of Nanjamma. The fact that no
mention of authority was made in the deed, therefore would not
go to rebut the presumption.
26. In the case on hand, there is a specific averment in
the document of Ex.D2 that adoption has taken place in the year
1954 itself, when her husband gave authority to take defendant
No.1 in adoption and it is also stated that the defendant No.1
was living along with them, even prior to adoption in the year
1954. It is also important to note that the main contention of
the appellant/defendant No.1 before the Trial Court is that
immediately after the adoption deed came into existence in the
year 1954, Nanjamma had sold three items of property vide sale
deeds dated 29.02.1956 itself, wherein reference is made that
the defendant No.1 is her adopted son. It is also important to
note that the document of sale deeds are also marked as Exs.D3
to D5 which came into existence in the year 1956 itself. Having
referred those documents, there is a clear recital that Nanjamma
had adopted the defendant No.1 and reference is made with
regard to sale of properties on her behalf and on behalf of her
adopted son and the said sale is also not in dispute and the only
contention is that original sale deeds were not summoned. When
the documents are registered in the year 1956 and are not in the
custody of the defendant No.1, the question of producing the
original primary evidence does not arise, since certified copies
are marked and the said transactions have taken place in the
year 1956 itself and the presumption of documents and
presumption of adoption are not rebutted. There is no any
express provision of prohibition in taking adoption.
27. Learned counsel for the appellant also relied upon
the judgment of the Apex Court in SRI LAKHI BARUAH AND
OTHERS VS. SRI PADMA KANTA KALITA AND OTHERS
reported in AIR 1996 SC 1253 and brought to notice of this
Court Para No.15, wherein the Apex Court has observed that
Section 90 of the Evidence Act is founded on necessity and
convenience because it is extremely difficult and sometimes not
possible to lead evidence to prove handwriting, signature or
execution of old documents after lapse of thirty years. In order
to obviate such difficulties or improbabilities to prove execution
of an old document. Section 90 has been incorporated in the
Evidence Act, which does away with the strict rule of proof of
private documents. Presumption of genuineness may be raised if
documents in question is produced from proper custody. It is,
however, the discretion of the Court to accept the presumption
flowing from Section 90. There is, however, no manner of Court
that judicial discretion under Section 90 should not be exercised
arbitrarily and not being informed by reasons. In Para No.17
also, the Apex Court held the position since the aforesaid Privy
Council decisions being followed by later decisions of different
High Courts is that presumption under Section 90 does not apply
to a copy or a certified copy even though thirty years old : but if
a foundation is laid for the admission of secondary evidence
under Section 65 of the Evidence Act by proof of loss or
destruction of the original and the copy which is thirty years old
is produced from proper custody, then only the signature
authenticating the copy may under Section 90 be presumed to
be genuine.
28. The Apex Court in the judgment in GOSWAMI
SHREE VALLABHALAJI VS. GOSWAMINI SHREE
MAHALAXMI BAHUJI MAHARAJ AND ANOTHER reported in
AIR 1962 SC 356 in Para No.24, which I have already
discussed (supra) observed that is clear that the necessity of
consent of the husband's sapindas would arise, if the Madras
School of Mitakshara law was applicable only where there was no
authority from the husband. I have already pointed out that in
the document of Ex.D2, it is specifically mentioned with regard
to the fact that authority was given to Nanjamma and it is also
stated that even prior to execution of document, formalities were
done and the same is also spoken by P.W.1 in his evidence. It is
also clear that though the adoption deed which is marked as
Ex.D2 is not by both the parents, the fact that the natural father
had attested the document of registered adoption deed executed
in the year 1954 is not disputed. Though the said document is
not in terms of giving and taking ceremony consequent upon the
Hindu Succession Act, 1956, but the very attestation by the
natural father is clear that he gave consent for adopting
defendant No.1 as the son of Nanjamma and the same has taken
place prior to 1956. The principles laid down in the judgments of
the Apex Court in SRI LAKHI BARUAH's case and GOSWAMI
SHREE VALLABHALALJI's case have to be taken note of while
appreciating the material available on record.
29. The Trial Court and the First Appellate Court, while
considering the material on record with regard to the adoption is
concerned, failed to take note of the document of Exs.D1 to D18
and this Court considering the grounds which have been urged in
the second appeal, framed the substantial questions of law with
regard to rejection of adoption deed and adoption of appellant by
Nanjamma for and on behalf of her husband T. Thammaiah and
the document of Ex.D2 is very clear that authority was given to
wife i.e., Nanjamma and this Court has discussed with regard to
the Karnataka Hindu Women's Rights Act, 1933 and the
documents produced before the Court evidence the fact that
defendant No.1 was the adopted son of Nanjamma. It is
important to note that document of adoption deed came into
existence long back in the year 1954 and sale deeds are
executed in the year 1956 with respect to sale of three items of
properties. Thus, both the Courts committed an error in coming
to the conclusion that the adoption is not proved only on the
ground that there is no giving and taking ceremony being held
and both the Courts failed to take note of the registered
documents of the year 1954 and 1956 and when the documents
are registered documents, both the Courts ought to have taken
note of Section 90 of the Evidence Act and the same is not
considered.
30. The principles laid down in the judgment of the Apex
Court in SRI LAKHI BARUAH's case with regard to Section 90
of the Evidence Act provides that if original documents are in the
custody of the owners, who purchased the property in the year
1956, securing the said documents executed in the year 1956 is
very difficult and hence, the appellant has secured the certified
copies of the same before this Court and the document of the
year 1956 cannot be disputed after lapse of 40 years. This Court
also in the judgment in R.S.A.NO.200036 OF 2014 dated
10.10.2023 relied upon by the learned counsel for the appellant
framed the substantial question of law, in the absence of any
evidence as regards the giving and taking of the adoption,
whether the Court below could have accepted the adoption deed
and the same is answered by looking into the provisions of
Sections 11 of the Hindu Adoption and Maintenance Act, 1956.
This Court would like to refer Section 11 of the Hindu Adoption
and Maintenance Act, 1956, which reads as hereunder:
"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 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 place or family
where it has been brought up to the family of its
adoption:
Provided that the performance of data homam shall
not be essential to the validity of an adoption."
31. Having considered Section 11 of the Hindu Adoption
and Maintenance Act, 1956, it lays down some vital rules
relating to the law of adoption and the rules and conditions
stated in the section are absolute and non-compliance with any
of them will render an adoption invalid. Clause (vi) of Section 11
in express terms states that there must be the actual giving and
taking of the child with intent to transfer the child from the
family of its birth to the family of its adoption. The physical act
of giving and receiving was absolutely necessary for the validity
of an adoption under the law as it existed before coming into
force of the present Hindu Adoption and Maintenance Act, 1956,
and the position under the Act is identical and the Apex Court in
the case of JAISINGH VS. SHAKUNTALA reported in (2002) 3
SCC 634 has categorically 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 delivery of child from one family to another.
32. In the case on hand, it has to be noted that adoption
has taken place in the year 1954 and there is an overt act to
signify delivery of the child from one family to another and in the
document of registered sale deeds executed in the year 1956,
the very adoptive mother recognized the defendant No.1 as her
adopted son and disposed of the properties on 29.02.1956 itself
recognizing the right of defendant No.1 as adopted son and the
same is nothing but some overt act to signify the delivery of
child from one family to another and acted upon in terms of the
said adoption deed of the year 1954 which is a registered
document. This Court would like to extract Section 16 of the
Hindu Adoption and Maintenance Act, 1956, which reads as
hereunder:
"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".
33. Section 16 of the Hindu Adoption and Maintenance
Act, 1956 is also very 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 his
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. I have already pointed out that the natural
father has attested the adoption deed which was executed in the
year 1954 and there is no rebuttal evidence, except the say of
the plaintiff that he has taken care of said Nanjamma, but
admission given by P.W.1 is very clear that after the death of
husband of Nanjamma, she has been in possession of the
property. However, the plaintiff claims that he was in joint
possession, but none of the document disclose that he was in
joint possession with said Nanjamma. Apart from that the
records reveal that when Nanjamma died in the year 1995, the
defendant No.1 himself has conducted the obsequious and the
plaintiff also claims that he has attended 5th day ceremony and it
is not his case that he performed the last rituals. Further, the
said Nanjamma herself performed the marriage of daughter of
defendant No.1 and the ration card and other documents reveal
that defendant No.1 continued along with said Nanjamma
throughout her life. These documents are not taken note by the
Trial Court and the First Appellate Court and when there is a
presumption with regard to validity of the adoption and when the
adoption deed is registered, and in such circumstances, the
adoption is in conformity with the Act as held by the Apex Court
in the case of SAROJA VS. SENTHIL KUMAR reported in
(2011) 11 SCC 483.
34. It is also important to note that the adoption is
challenged after more than 42 years in the year 1996 and
adoption has taken place in 1954, strict rules of Evidence after a
lapse of 50 years cannot be insisted when both oral and
documentary evidence are available before the Court,
particularly the registered documents and due to lapse of time, it
is highly difficult to prove giving and taking ceremony of
adoption and the same is not considered by the Trial Court and
the First Appellate Court. No doubt, it is the contention of the
plaintiff that property reverts back to co-parcener, the said
contention cannot be accepted and it has to be noted that there
was a partition between co-parcener in the year 1943 itself by
way of registered release deed executed by T. Thammaiah i.e.,
adoptive father of the appellant and subsequently, adoption deed
came into existence in the year 1954 and the property was sold
in the year 1956 recognizing the right of the adopted son and
there was reference in the document of Exs.D3 to D5.
35. It is also important to note that in view of Hindu
Succession Act, 1956, when an adoptive mother inherits
property from her mother and consequent upon Section 14 of
the Hindu Succession Act, 1956, she becomes the absolute
owner of the property and she has an absolute right after 1956,
since property is held by her. When such being the case, when
all the material on record discloses that plaintiff was not in
possession of the property and when there is a clear admission
on the part of P.W.1 that plaintiff was not in possession and
Nanjamma was in possession, however an attempt is made to
claim that he was in joint possession, though nothing is placed
on record to prove the same. Hence, both the Courts committed
an error in coming to the conclusion that the plaintiff is in
possession of the suit schedule properties and both the Courts
failed to take note of the revenue documents and subsequent to
the death of her husband, the revenue documents were standing
in the name of Nanjamma and that too, in the year 1989, khatha
has been transferred in the name of Nanjamma and also there
was an admission that she was in possession of the properties
after the death of her husband and thereafter, she also died in
the year 1995 and immediately after 1995, present suit is filed.
36. It is important to note that when the document is
registered in the year 1954 and the sale deeds were executed in
the year 1956 in favour of the prospective purchasers, the very
contention of the plaintiff that he came to know about the same
when claim was made based on the adoption deed cannot be
accepted and registration of the document itself is a notice to the
all and both the Courts failed to take note of the fact that suit is
filed after lapse of 40 years of adoption and erroneously comes
to the conclusion that suit is barred by limitation and the very
approach of both the Courts is erroneous and committed an
error in declaring the ownership right in respect of suit schedule
'A' and 'B' properties in favour of the plaintiff and failed to
consider Section 14 of the Hindu Succession Act, 1956 as well as
both oral and documentary evidence available on record,
particularly the documents of Exs.D1 to D18.
37. The adoption is also challenged by the plaintiff, who
is the brother of the husband of Nanjamma and this Court in the
judgment in VEERABHDRAYYA R. HIREMATH (D) BY L.Rs.
VS. IRAYYA A.F. BASAYYA HIREMATH reported in 2006 A I
H C 1734, held that except the adoptive parents and adoptive
son, others have no locus standi to question the validity of the
adoption deed. The principles laid down by co-ordinate Bench of
this Court is squarely applicable to the instant case which has
been considered in the judgment of this Court in
R.S.A.NO.200036 OF 2014 dated 10.10.2023. Hence, the
plaintiff cannot question the adoption and validity of the
adoption deed and the plaintiff has no locus standi to question
the same. Hence, I answer the substantial questions of law
framed by this Court accordingly that both the Courts committed
an error in rejecting the claim of defendant No.1 that he is an
adopted son and failed to consider both oral and documentary
evidence and after a long time i.e., 42 years, strict burden of
proof for an adoption cannot be insisted when presumption is
available under Section 16 of Hindu Adoption and Maintenance
Act, 1956 which I have already discussed.
38. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of the
Trial Court passed in O.S.No.122/2000 and the
First Appellate Court passed in
R.A.No.186/2004 are set aside and
consequently, the suit is dismissed.
Sd/-
JUDGE
ST
