Karnataka High Court
Halagappa Tippanna Waddar And Ors vs Basappa on 29 May, 2024
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RSA No. 7036 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 7036 OF 2013 (DEC/INJ)
BETWEEN:
HULAGAPPA TIPPANNA WADDAR,
SINCE DECEASED BY LRS
1. NAGAMMA,
W/O HULAGAPPA WADDAR,
AGED ABOUT 74 YEARS,
OCC. AGRICULTURE.
2. TIMMANNA,
S/O HULAGAPPA WADDAR,
AGED ABOUT 53 YEARS,
OCC. MESON.
Digitally signed 3. DEVENDRA,
by KHAJAAMEEN S/O HULAGAPPA WADDAR,
L MALAGHAN
Location: HIGH AGED ABOUT 43 YEARS,
COURT OF OCC. AGRICULTURE.
KARNATAKA
4. DYAVAPPA,
S/O HULAGAPPA WADDAR,
AGED ABOUT 30 YEARS,
OCC. AGRICULTURE & MESON.
5. LAXMIBAI,
W/O HULAGAPPA WADDAR,
AGED ABOUT 32 YEARS,
OCC. HOUSEHOLD WORK.
6. GADDEMMA,
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RSA No. 7036 of 2013
W/O BHOJAPPA WADDAR,
AGED ABOUT 40 YEARS,
OCC. HOUSEHOLD WORK.
7. DEVAMMA,
W/O DASARATH WADDAR,
AGED ABOUT 33 YEARS,
OCC. HOUSEHOLD WORK,
ALL ARE R/O KESAPUR,
TQ. MUDDEBIHAL,
DIST. BIJAPUR-585 401.
... APPELLANTS
(BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI GANESH S KALABURAGI, ADVOCATE)
AND:
BASAPPA,
CLAIMING HIMSELF AS ADOPTED SON
OF DYAVAPPA WADDAR,
AGED ABOUT 48 YEARS,
OCC. COOLIE,
R/O KESAPUR, MUDDEBIHAL TQ.
DIST. BIJAPUR-585 401.
...RESPONDENT
(BY SRI SACHIN M MAHAJAN, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 14.12.12 PASSED IN R.A.
NO. 61/11 ON THE FILE OF THE I ADDL. DISTRICT JUDGE,
BIJAPUR, WHEREIN THE APPEAL WAS DISMISSED AND THE
JUDGEMENT AND DECREE DATED 07.02.11 PASSED IN O.S.
NO. 162/05 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND
JMFC MUDDEBIHAL, WAS CONFIRMED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
10.04.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT BENGALURU
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7036 of 2013
JUDGMENT
This second appeal is directed against the concurrent
findings of the trial Court in O.S.No.162/2005 dated
07.02.2011 and the First Appellate Court in
R.A.No.61/2011 dated 14.12.2012, whereby, the suit filed
by the plaintiff-Hulagappa Tippanna Waddar for
declaration and injunction that he is absolute owner of
Sy.No.17, 69/2 and 136 of Kesapura Village and to declare
that the adoption deed dated 22.08.1983 is null and void
and consequential relief of injunction.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. The factual matrix that is relevant for the
purpose of this appeal is as below:
The plaintiff contended that one Thimmanna and
Dyavappa were full brothers and they were cultivating and
enjoying the land bearing No.136, 17 and 69/2 of
Kesapura Village as they were vathan lands. When Village
Inam Abolition Act came into force, the lands vested with
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the Government. Since Thimmanna died, Dyavappa was
the Kartha of the family. Thereafter, Dyavappa filed
declaration in Form No.7 under the Bombay Tenancy Act
for a re-grant. Accordingly, the Land Tribunal, Muddebihal
was seized of the said claim of Dyavappa. Then the said
Dyavappa died, his wife Giddamma continued the
proceedings on behalf of the joint family. Dyavappa and
Giddamma had no children. The Land Tribunal granted the
lands and accordingly a mutation entry No.979 came to be
effected in the year 1999 and the name of Giddamma was
entered. Therefore, the plaintiff who is son of Thimmanna
Waddar contended that such grant in favour of Giddamma
would enure to the benefit of joint family of the plaintiff
and Giddamma. Now the defendant is contending that he
is the adopted son of Giddamma and Dyavappa. The plaint
alleges that Giddamma was of old age and was unable to
understand the day to day transactions and she never
intended to adopt anybody as her son. It is contended that
Dyavappa had declared before the Tribunal that the
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plaintiff is his successor. It is contended that the
defendant who is son-in-law (brother's son) of Giddamma
could not have been taken in adoption since he was aged
more than 15 years and was married and by taking undue
advantage of age and other disabilities of Giddamma and
behind the back of the plaintiff, false documents have
been created showing the defendant as adopted son and
there was no such ceremonies of adoption performed. The
alleged adoption is contrary to the provisions of law and
there was no custom in the community permitting a
person aged more than 15 year to be adopted. It was
alleged that the adoption deed had never seen the light of
the day for more than 20 years and therefore, the said
adoption is null and void. The mutation entries were
challenged by the plaintiff which ultimately culminated in a
Writ Appeal No.5900/2003 before this Court, wherein, this
Court had directed to approach the Civil Court to establish
his claim. In the meanwhile, Giddamma is also no more.
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4. On appearance the defendant contended that
he is the adopted son of Giddamma and the adoption was
in accordance with law. It was specifically contended that
the adoption took place on 15.08.1983 and the adoption
deed was executed on 22.08.1983. It was contended that
Dyavappa had brothers by name Hulgappa, Hanumappa
and Mudukappa who are no more and they were residing
separately. He also denied that Dyavappa was acting as
Kartha of the joint family. It was contended that Dyavappa
filed declaration before the Tribunal and accordingly, the
property was allotted to Giddamma in her individual
capacity. It was alleged that plaintiff in collusion with the
revenue authorities has entered his name in the revenue
records. It was challenged by him before the Assistant
Commissioner, Deputy Commissioner and before the High
Court. He contended that Giddamma has adopted the
defendant as adopted son after death of Dyavappa and
since then, the defendant and Giddamma were in
possession and enjoyment of the suit schedule properties.
Therefore, he sought for dismissal of the suit.
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5. On the basis of the above pleadings, the trial
Court framed the following issues:
"1. Whether the plaintiff proves that, the alleged
adoption deed dated: 28.8.1983 is null and
void?
2. Whether the plaintiff was/is in actual possession
enjoyment cultivation and Wahivat of the suit
properties?
3. Whether the plaintiff further proves that he is
the absolute owner of the suit properties?
4. Whether the alleged interference of the
defendant is true?
5. Whether the defendant proves that the Court
Fee paid is not proper?
6. Whether the suit is barred by time?
7. Whether the plaintiff is entitled for the relief
sought?
8. What order or decree?"
6. During the pendency of the suit, the plaintiff
died and his LRs were brought on record. The plaintiff
No.1(c) was examined as PW.1 and two witnesses were
examined his behalf as PWs.2 and 3. Ex.P1 to P53 were
marked. The defendant was examined as DW.1 and three
witnesses were examined on his behalf as DWs.2 to 4 and
Exs.D1 to D14 were marked on his behalf.
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7. After hearing the arguments, the trial Court
answered the issue Nos.1 to 7 in the negative and
dismissed the suit with costs. Being aggrieved by the
same the plaintiffs went in appeal in RA.No.61/2011. The
First Appellate Court heard both the sides and raised the
following points for consideration:
"1. Whether the adoption of defendant by
Giddamma is not valid and void ab-initio?
2. Whether the judgment and decree is sustainable
in law?
3. What order?"
8. Answering the point Nos.1 to 3 in the negative,
the appeal came to be dismissed by the Appellate Court.
Being aggrieved by the same, the plaintiffs have
approached this Court in appeal. This Court while
admitting the appeal has framed the following substantial
questions of law:
"1. Though the adoption is recorded in a registered
document whether the presumption of adoption
could be drawn in the absence of other legal
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requirements mentioned in Section 16 are
fulfilled?
2. Whether the adoption of boy more than 15 years
is valid in the absence of any plea or proof of
custom prevailing in the community?"
9. The respondent/defendant has appeared
through his counsel and the trial Court records have been
secured. The arguments by learned Senior Counsel
Sri.Ameet Kumar Deshpande appearing for Sri.Ganesh S.
Kalaburagi appearing for the appellants and learned
counsel Sri Sachin Mahajan appearing for respondents
were heard.
10. Learned Senior Counsel appearing for the
appellants submitted that though the defendant had
produced the registered adoption deed at Ex.D1, there
was no such pleading in the written statement that there
existed a custom for adoption of a boy aged more than 15
year and therefore, the adoption is a non-est. It is
contended that the defendant should have averred in the
pleading that there exists such a custom. Second prong of
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the argument of the learned counsel for the appellants is
that the provisions of Section 16 of the Hindu Adoption
and Maintenance Act (for short 'HAMA') does not create an
absolute presumption. He submits that other legal
requirements as mentioned in Sec. 16 require the proof
that the adoption had really taken place in accordance
with law. He submits that mere production of adoption
deed is not sufficient but the factum of adoption, that the
essential religious ceremonies were held, and the giving
and taking of the boy in adoption are to be proved. He has
taken this Court through the evidence on record to point
out that the attesting witnesses of the adoption deed at
Ex.D1 were not examined, there is no averment in the
evidence of the witnesses that there was giving and taking
of the adoption by the genitive and adoptive parents, the
LTMs in the adoption deed were not identified by anybody
and therefore, the essential requirements of Section 16 of
the HAMA are not complied.
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11. In support of his contentions, he relied on the
following judgments:
1. Mahadev v. Bainabai1
2. Madhusudan Das v. Smt. Narayani Bai and Others2
3. Moturu Nalini Kanth Vs. Gainedi Kaliprasad (dead,
through LRs.3
4. Virupanna S/o Yamunappa Jetty and Others Vs.
Earanna S/o Lingappa and Others
5. Ratanlal alias Babulal Chunilal Samsuka v. Sundarabai
Govardhandas Samsuka (D) Th. Lrs. and Others.5
6. Bhimashya and Others v. Smt. Janabi @ Janawwa.6
12. Lastly the learned Counsel for the appellants
submitted that the Giddamma was acting on behalf of the
joint family and therefore, even if the defendant is held to
be the adopted son of Giddamma, the suit properties are
the joint family properties in which the plaintiff and the
defendant will have half share each. He prayed for
moulding the relief by granting the decree for partition.
AIR 1975 Karnataka 79
AIR 1983 SC 114
AIR 2017 SC 5797
Appeal (Civil) 5689 of 2006
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13. Per contra, the learned Counsel for the
defendant/respondent has contended that the suit of the
plaintiff is time barred. He submits that the Ex.D7, which
is the order passed by this Court in WP.No.328/1984,
which later converted into LRA, shows that the adoption
was contended much prior to 1984. The adoption was on
22.08.1983. Therefore, the plaintiff knew about the
adoption in the year 1984 itself. He should have filed the
suit for declaration that the adoption is void within three
years from 1984. The order of the Tribunal, which was
confirmed by the High Court, was to the effect that the
grant was in the individual capacity of Giddamma who was
representing Dyavappa. Therefore, the suit should have
been filed within 1987 and as such, the present suit, which
was filed in the year 2005 is barred by time. He further
contended that there is custom in the Bombay Karnataka
Area where a person aged more than 15 years can be
adopted. The judicial recognition of such custom is visible
from catena of decisions and therefore, there is no need
for the defendant to plead the custom and prove it. In this
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regard, he relies on the judgment in the case of Kondiba
Rama Papal @ Shirke Vs. Narayana Kondiba7. He
further contended that the plaintiff who is not a party to
the adoption deed at Ex.D1 cannot have any locus standi
to question the same. Therefore, the challenge by the
plaintiff to the adoption deed is not sustainable in law.
14. Thirdly, he contended that the adoption deed is
registered document and therefore, it cannot be said that
the defendant is required to prove that all the religious
rituals regarding adoption had taken place. It is submitted
that the provisions of Section 16 cannot be interpreted in
such a fashion that the mandate of presumption is itself
taken away. Therefore, he submits that the capacity of the
giver and taker is established and their consent is proved,
the presumption under Section 16 operates and the
plaintiff cannot question the same. He submits that the
signature/LTM has been ascertained by the Sub-Registrar
AIR 1991 SC 1180
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and therefore, frivolous arguments in this regard cannot
be entertained.
15. Fourthly, he submitted that nowhere it is
established by the plaintiff that the property was belonging
to father of Thimmanna and Dyavappa and the defendant
has not admitted that it was held by Nagappa. Therefore,
at no stretch of imagination and in view of the order of the
Tribunal in LRA, it can be said that the grant in favour of
Giddamma would enure to the benefit of the joint family of
Dyavappa and his brothers. In this regard, he has placed
reliance on following decisions:
1. Kondiba Rama Papal Alias Shirke (Dead) By his Heirs
and LRS and Another V. Narayan Kondiba Papal.8
2. Sri Vasudev Narayan Naik @ Venkatraman A/F Vasu
Naik Vs. Sri Mahadev Hammanna Naik.9
3. M.G Purushotham V. N.K Srinivasan.10
4. Smt. Chandamma W/o Shankrappa Chalgeri Since
Deceased by LR's Vs. Channaveer Alleged.11
5. Veerabhadrayya R. Hiremath (deceased) by LRs and
Others Vs. Irayya A.F Basayya Hiremath.12
AIR 1991 SC 1180
Airoline 2024 KAR 292
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Re.Substantial question of law No.1:
16. The presumption that is available under Section
16 of the HAMA Act is rebuttable. The provisions of Section
16 of the Act read as below:
"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."
17. It is worth to note that the presumption that is
available under Section 16 of the HAMA Act is in respect of
the adoption and is subject to the proof that the document
is signed by the person giving and the person taking the
child in adoption. If it is shown that the document is
signed by the person giving and the person taking the
child in adoption, then the presumption may be drawn.
However, the presumption is rebuttable in nature.
2006 (@) KCCR 989
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Therefore, the first aspect to be proved in respect of the
adoption is that there is such an adoption as per Ex.D1
and it was signed by the person who is giving and taking
the same. If this aspect is established, then the onus shifts
upon the plaintiff to prove that such deed of adoption is
shrouded with suspicious circumstances and is rebutted by
sufficient evidence.
18. In the case on hand, it is evident that the
defendant has produced the adoption deed at Ex.D1.
Ex.D1 was also signed by the witnesses i.e., DW.2 and
DW.4. Both these witnesses have identified their
signatures as the attesting witnesses on Ex.D1 and have
stated that father and mother of the defendant, were the
givers of the child in adoption and Giddamma was the
person who was taking the child in adoption. These
statements made by DW.2 and DW.4 in testimony before
the trial Court, would make it sufficient enough to invoke
the presumption that would be available under Section 16
of the Act.
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19. Learned counsel appearing for the
appellants/plaintiffs contends that the adoption is
shrouded with mysterious and suspicious circumstances.
In this regard, he has placed reliance on the judgment of
the Apex Court in the case of Moturu Nalini Kanth v. Gainedi
Kaliprasad13, wherein, the Apex Court had the occasion to
deal with the provisions of Section 16 of the Act in detail
and it had referred to several decisions in this regard.
Paragraph Nos.35 to 46 of the judgment reads as below:
"35. Coming to the adoption ceremony of 18.04.1982 and
Ex. A9 Adoption Deed, whereunder Nalini Kanth would, in
the alternative, claim a half-share in Venkubayamma's
properties, we find that the same are also shrouded with
equally suspicious circumstances. No doubt, Ex. A9
Adoption Deed was registered and Section 16 of the Hindu
Adoptions and Maintenance Act, 1956 (for brevity, 'the Act
of 1956'), raises a presumption in favour of a registered
document relating to adoption. It 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
2023 SCC OnLine SC 1488
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adoption has been made in compliance with the
provisions of this Act unless and until it is
disproved.'
36. The presumption, as is clear from the provision itself,
is rebuttable. In G. Vasu v. Syed Yaseen Sifuddin Quadri,
a Full Bench of the Andhra Pradesh High Court pointed out
that presumptions are of two kinds - presumptions of fact
and of law. It was noted that a presumption of fact is an
inference logically drawn from one fact as to the existence
of other facts and such presumptions of fact are rebuttable
by evidence to the contrary. It was also held that
presumptions of law may be either irrebuttable, so that no
evidence to a contrary may be given, or rebuttable, and a
rebuttable presumption of law is a legal rule to be applied
by the Courts in the absence of conflicting evidence. This
view was affirmed by this Court in Bharat Barrel & Drum
Manufacturing Company v. Amin Chand Payrelal and it was
held that in order to disprove a presumption, such facts
and circumstances have to be brought on record, upon
consideration of which, the Court may either believe that
the consideration did not exist or its non-existence was so
probable that a prudent man would, under the
circumstances of the case, act upon the plea that it did not
exist.
37. In this regard, we may also note that Section 11 of the
Act of 1956 stipulates the conditions to be complied with to
constitute a valid adoption and, to the extent relevant, it
reads as under:
'11. Other conditions for a valid adoption. - In
every adoption, the following conditions must be
complied with:"
(i) to (v) ....;
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(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 datta
homam shall not be essential to the validity
of adoption'
38. We may now take note of relevant case law.
In Laxmibai (Dead) through LRs. v. Bhagwantbuva (Dead)
through LRs., this Court held that the mere signature or
thumb impression on a document is not adequate to prove
the contents thereof but, in a case where a person who
has given his son in adoption appears in the witness box
and proves the validity of the said document, the Court
ought to accept the same taking into consideration the
presumption under Section 16 of the Act of 1956. Ergo,
the proving of the validity of the document is a must.
39. Much earlier, in Kishori Lal v. Mst. Chaltibai, a 3-Judge
Bench of this Court held that, as an adoption results in
changing the course of succession, it is necessary that the
evidence to support it should be such that it is free from all
suspicions of fraud and so consistent and probable as to
leave no occasion for doubting its truth. On facts, the
Bench found that no invitations were sent to the
brotherhood, friends or relations and no publicity was
given to the adoption, rendering it difficult to believe.
40. In Govinda v. Chimabai, a Division Bench of the
Mysore High Court observed that the mere fact that a deed
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of adoption has been registered cannot be taken as
evidence of proof of adoption, as an adoption deed never
proves an adoption. It was rightly held that the factum of
adoption has to be proved by oral evidence of giving or
taking of the child and that the necessary ceremonies,
where they are necessary to be performed, were carried
out in accordance with shastras.
41. In Padmalav Achariya v. Srimatyia Fakira Debya, the
Privy Council found that a cloud of suspicion rested upon
an alleged second adoption and the factum of the second
adoption was sought to be proved on the basis of evidence
of near relatives who were also partisan, which made it
unsafe to act upon their testimonies. The Privy Council
held that both the adoptions were most improbable in
themselves and were not supported by contemporaneous
evidence.
42. In Jai Singh v. Shakuntala, this Court noted the
statutory presumption envisaged by Section 16 of the Act
of 1956 and observed that though the legislature had used
'shall' instead of any other word of lesser significance, the
inclusion of the words 'unless and until it is disproved'
appearing at the end of the statutory provision makes the
situation not that rigid but flexible enough to depend upon
the evidence available on record in support of the
adoption. This Court further noted that it is a matter of
grave significance by reason of the factum of adoption and
displacement of the person adopted from the natural
succession - thus onus of proof is rather heavy. This Court
held that the statute allowed some amount of flexibility,
lest it turns out to be solely dependent on a registered
adoption deed. The reason for inclusion of the words
'unless and until it is disproved', per this Court, have to be
ascertained in proper perspective and as such, the
presumption cannot but be said to be a rebuttable
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presumption. This Court further held that the registered
instrument of adoption presumably stands out to be taken
to be correct but the Court is not precluded from looking
into it upon production of some evidence contra the
adoption and the Court can always look into such
evidence. This Court further noted the mandate of Section
11 (vi) of the Act of 1956 and held that the 'give and take
in adoption' is a requirement which stands as a sine qua
non for a valid adoption.
43. In Mst. Deu v. Laxmi Narayan, this Court observed
that in view of Section 16 of the Act of 1956, whenever
any document registered under law is produced before the
Court purporting to record an adoption made and is signed
by the persons mentioned therein, the Court should
presume that the adoption has been made in compliance
with the provisions of the said statute, unless and until it is
disproved. It was further held that in view of Section 16 of
the Act of 1956, it is open to the persons who challenge
the registered deed of adoption to disprove the same by
taking independent proceedings.
44. In Lakshman Singh Kothari v. Rup Kanwar (Smt) alias
Rup Kanwar Bai, having referred to texts on Hindu Law,
this Court observed:
'10. The law may be briefly stated thus :
Under the Hindu law, whether among the
regenerate caste or among Sudras, there
cannot be a valid adoption unless the
adoptive boy is transferred from one family to
another and that can be done only by the
ceremony of giving and taking. The object of
the corporeal giving and receiving in adoption
is obviously to secure due publicity. To
achieve this object, it is essential to have a
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formal ceremony. No particular form is
prescribed for the ceremony, but the law
requires that the natural parent shall hand
over the adoptive boy and the adoptive
parent shall receive him. The nature of the
ceremony may vary depending upon the
circumstances of each case. But a ceremony
there shall be, and giving and taking shall be
part of it. The exigencies of the situation
arising out of diverse circumstances
necessitated the introduction of the doctrine
of delegation; and, therefore, the parents,
after exercising their volition to give and take
the boy in adoption, may both or either of
them delegate the physical act of handing
over the boy or receiving him, as the case
may be, to a third party.'
45. In M. Vanaja v. M. Sarla Devi (Dead), this Court took
note of the relevant provisions of the Act of 1956 and held
that a plain reading of the said provisions made it clear
that compliance with the conditions in Chapter 1 of the Act
of 1956 is mandatory for an adoption to be treated as valid
and that the two important conditions mentioned in
Sections 7 and 11 of the Act of 1956 are the consent of the
wife before a male Hindu adopts a child and the proof of
the ceremony of actual giving and taking in adoption.
46. In Dhanno wd/o Balbir Singh v. Tuhi Ram (Died)
represented by his LRs., a learned Judge of the Punjab &
Haryana High Court, faced with the argument that Section
16 of the Act of 1956 required a registered adoption deed
to be believed, held that the presumption thereunder, if
any, is rebuttable and by merely placing the document on
record without proving the ceremony of due adoption, it
could not be said that there was a valid adoption. The
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learned Judge rightly noted that the factum of adoption
must be proved in the same way as any other fact and
such evidence in support of the adoption must be sufficient
to satisfy the heavy burden that rests upon any person
who seeks to displace the natural succession by alleging an
adoption."
20. It is worth to note that after observing the
position of law as above, the Apex Court proceeds to
consider the evidence on record and has pointed out that
there are several suspicious circumstances in respect of
the adoption deed and also such suspicion existed in a Will
involved in that case. Therefore, it came to the conclusion
that the adoption is not believable.
21. Learned counsel appearing for the appellants
has also placed reliance on the judgment in the case of
Mahadev v. Bainabai (referred supra), wherein, this
Court had held that it is necessary to prove that the
document produced purports to be the record of adoption
made and the said document is signed by the person
taking the child as well as by the person giving the child in
adoption and thirdly, that the document is duly registered
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under any law for time being in force. These conditions are
essential in order to draw the presumption under Section
16 of the Act. It was held that signature of the presenter
alone cannot be due compliance when he had not signed
the document as a signatory.
22. Learned counsel appearing for the appellants
has also placed reliance on the judgment in the case of
Madhusudan Das v. Smt. Narayani Bai and Others
(referred supra), wherein, it was held that the adoption
has to be proved with reference to the requirements of
Sections 10 and 11 of the Act.
23. He also relied on the judgment in the case of
Virupanna S/o Yamunappa Jetty and Others Vs.
Earanna S/o Lingappa and Others (referred supra),
wherein, it was observed that when the document do not
bear the signature of the person giving the child in
adoption, the adoption deed do not fall within the purview
of Section 16 and therefore, the adoption cannot be
presumed.
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24. He also relied on the judgment in the case of
Ratanlal alias Babulal Chunilal Samsuka v.
Sundarabai Govardhandas Samsuka (D) Th. Lrs. and
Others (referred supra), wherein, it was observed that
the various suspicious circumstances surrounding the
adoption deed would be sufficient material to show that
adoption is rebutted by sufficient evidence.
25. It is pertinent to note that the Apex Court in the
case of Moturu Nalini Kanth (referred supra) has dealt
with the requirement of Section 16 of the Act in detail. It
has chronicled the various decisions of the Apex Court in
that regard. The gist of all the judgments referred to by
the Apex Court is that the presumption of a fact is
depended upon a fact of registration of a adoption deed.
When the registration of the adoption deed is established
and that the deed of adoption was signed by the person
giving the child in adoption and the person taking the child
in adoption, the presumption exists. However, such
presumption is rebuttable presumption and if the
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suspicious circumstances are brought on record and if they
are not dispelled by the propounder or beneficiary of the
adoption, then, it has to be held that there was no such
adoption. It was in that regard, the fulfilment of
requirement of Sections 11 and 12 of Act have to be
considered. If any of the requirements under Sections 11
and 12 of the Act are not complied, they may give rise to
a suspicious circumstance, which would invalidate the
presumption available under Sections 16 of the Act.
Therefore, the other conditions which are available under
Sections 11 and 12 of the Act are to be seen in the light of
whether there would be any suspicious circumstances
regarding the execution of the adoption deed. It does not
mean that conditions mentioned in Sections 11 and 12 of
the Act are to be proved, especially Section 11(4) is to be
proved, despite a presumption arises out of a deed of
adoption permissible under Section 16 of the Act. It is
pertinent to note that if we hold that despite a document
purported to be a deed of adoption is permissible under
Section 16 of the Act is produced, then also the beneficiary
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has to prove all the requirements under Section 11 of the
Act, it would be nothing but ignoring the presumption that
is mandated under Section 16 of the Act. Such a
hypotheses would render Sec.16 otiose. The legislature in
its wisdom has provided that if there is an adoption deed,
it has to be presumed provided that the document is
proved to be signed by the person who gives the child in
adoption and the person who takes the child in adoption
and it is registered. This requirement has to be established
and then the presumption comes in play. It cannot be said
that the person who is claiming under the adoption has
also prove all the requirements of Section 11 of the Act.
No doubt, Section 11 lay down certain conditions and
those conditions have to be fulfilled. The condition No.4
that the child to be adopted must be actually given and
taken in adoption by the parents or guardian concerned or
under their authority with intend 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 of
family where it has been brought up by the family in
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adoption is also to be proved. Otherwise, there would not
be any sanctity for Section 16 of the Act. Therefore, when
a deed of adoption is produced in compliance of Section 16
of the Act, it would obviate the necessity of the compliance
of all the conditions, i.e., proving of adoption ceremony,
giving and taking by the person who is giving the child in
adoption and taking the child in adoption etc. When the
document itself narrates such an event, that would be
sufficient enough.
26. In the light of the above discussion, if we
peruse the Ex.D1 which is the document of adoption in the
present case, it is to be seen that the parents of the
defendant i.e., Thippanna and the mother of the defendant
i.e., Nagavva were present and also Giddamma was
present to take the child in adoption. In addition to it, the
defendant, who was aged more than 21 years at that time,
has also signed the said document. It is worth to note that
the basic requirement of Section 16 of the Act has been
complied. Learned counsel appearing for the appellants
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would submit that the LTM of Giddamma, Thippanna,
Nagavva and the defendant were not identified by
anybody. A perusal of Ex.D1 would show that the scribe
himself has identified their LTM. Moreover, DW.2-
Dyammanna S/o Yamannappa Ambiger and DW.4-
Channaramappa Kantappa Ambiger have also signed the
document as witnesses. It is relevant to note that both
these witnesses i.e., DW.2 and 4 have stated that they
were present at the time of the adoption ceremony which
took place on 15.08.1983. DW.2 has clearly stated that
after one week, the document was prepared as per Ex.D1
and thereafter, it was presented to the Sub-Registrar for
registration. Their evidence would show that sufficient
compliance was made as per the judgment of this Court in
the case of Mahadev v. Bainabai (referred supra). A
perusal of the evidence available on record would show
that there are no such suspicious circumstances which are
brought out. The cross-examination of DWs.2 and 4 would
not show that there are any suspicious circumstances. The
defendant is none else than the brother's son of
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Giddamma. Therefore, it is obvious that Giddamma might
have chosen to adopt her brother's son and therefore, she
decided the same in the presence of several people who
are stated by the DW.2 and 4 and then a ceremony was
conducted.
27. It is evident that soon after the adoption, the
dispute between the plaintiff and defendant has arisen. It
is also pertinent to note that the dispute between the
plaintiff and defendant arose in the year 1984. It is
evident that the plaintiff was objecting to the order passed
by the Land Tribunal granting the occupancy rights in
favour of Dyavappa, the father of the defendant. He had
taken the matter before this Court in W.P.No.328/1984. It
is evident that the plaintiff was not accepting the grant of
the land to Dyavappa in his individual capacity and he was
claiming the rights over the suit schedule property.
Ultimately, the matter ended in LRA (TR) No.127/1988,
which was in fact a Writ Appeal and later transferred to
the Appellate Tribunal. The order of the Appellate Tribunal
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is marked at Ex.D7. In this document also, the Tribunal
has categorically observed that the even after death of
Dyavappa, the plaintiff was claiming rights in respect of
suit schedule property to be the joint family property and
therefore he had a share in it. This contention of the
plaintiff was rejected by the Appellate Tribunal and it
confirmed the order of the Land Tribunal. It is pertinent to
note that even before the Appellate Tribunal, the plaintiff
had contended that he is the only legal heir of Dyavappa
and he had disputed the adoption of the defendant. This
would clearly show that the dispute arose soon after the
adoption. Admittedly, during the life time of Giddamma,
plaintiff could not have been a legal heir of Dyavappa.
Under these circumstances, there are no such suspicious
circumstances which are brought on record by the plaintiff.
On the other hand, the records would show that
Giddamma had reason to take her brother's son i.e.,
defendant herein as her adopted son. It is also pertinent
to note that the cross-examination of the DWs.1, 2 and 4
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would not show any of the suspicious circumstances to
doubt the Ex.D1 and the adoption dated 15.08.1983.
28 . Under these circumstances, the contention of
the learned counsel appearing for the appellants that
despite the registered document of adoption as per Ex.D1
is produced, the defendant has to prove that the religious
ceremony had taken place in compliance of all the
requirements of Sections 10 and 11 of the Act, cannot be
accepted. It is necessary to observe that if a registered
document in compliance of Section 16 of the Act is
produced, then that would result in a presumption that all
the religious ceremonies of the adoption has been
performed and thereafter, the adoption is validated.
However, if there is any rebuttal evidence, then it is
permissible to rebut such presumption and then, the onus
shifts upon the beneficiary of the adoption.
29. It is also necessary to note that the plaintiff has
approached the Court with a prayer seeking declaration
that the adoption deed be declared as null and void.
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Evidently, the plaintiff knew about the adoption when he
had filed WP.No.328/1984, which came to be transferred
to the Appellate Tribunal. Therefore, it is evident that the
plaintiff should have sought for a declaration of the
adoption as null and void within three years of he came to
the knowledge of the same. Though it can be very well
argued that the plaintiff could not have sought for a
negative declaration, the present suit should have been
filed by him within three years claiming his exclusive rights
in the property. Thus, it is evident that the declaration
regarding the adoption deed could not have been sought
by him. To that extent, the suit is to be held as time
barred. However, the plaintiff sought that he is the
absolute owner of the suit schedule properties since he is
the only legal heir of Dyavappa and Giddamma. Under
these circumstances, the suit of the plaintiff in so far
seeking declaration in respect of the adoption deed is
concerned, is clearly time barred. When the plaintiff knew
that the defendant is claiming absolute rights in respect of
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the suit schedule property as he is the adopted son of
Giddamma, the plaintiff should have filed the present suit
within three years of he coming to the knowledge of the
adoption. Evidently, this aspect was not urged either
before the trial Court or before the First Appellate Court.
30. In view of the above, the first substantial
question raised by this Court is to be held in the
Affirmative.
Re.Substantial question of law No.2:
31. It is not in dispute that when defendant was
adopted by Giddamma, he was aged 24 years and he was
married. A legal point is raised by the plaintiff that the
alleged adoption is prohibited by law. Such prohibition is
on account of non-compliance of the provisions of law. It is
not the case of the plaintiff that there is no such custom.
32. The judgment of the Apex Court in the case of
Kondiba Rama Papal @ Shirke referred supra lays down
as below:
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"1. Thommen, J.:- Allowing the plaintiff's appeal and
setting aside the decrees of the Courts below, the High
Court, after finding that the factum of adoption had
been established, stated as follows on the question of
the validity of the adoption:
"The question then arises is the adoption legal and
valid in law in view of the provisions of the Act? Section
10 of the Act inter alia provides that no person shall be
capable of being taken in adoption unless the four
conditions therein laid down are fulfilled. We are
concerned with the fourth condition and it is as under:
'(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.'
At the time when the plaintiff was adopted he was
about 22 years old, but even though there is a
difference of opinion between various schools as to the
age when a boy may be adopted, so far as the Bombay
State is concerned the position is well settled in view of
more than one judicial decision. As pointed out in
Mulla's Hindu Law, 14th Edition at page 550 in the
Bombay State a person may he adopted at any age
though he may be older than the adopter and though
he may be married an have children. The adoption is
not invalid although it took place after the thread
ceremony of the boy was performed. Thus the custom
is judicially recognised in the Bombay State as regards
adoption of a child at any age. Once the custom is
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judicially recognised, it is not required to be
independently proved in subsequent cases. The plaintiff
and the defendant No.1 belonged to the area which
was part of the old Bombay State and accordingly such
a custom prevailed amongst them as regards adoption
of a child at any age. Even independently of this
position, in the old Bombay State evidence was led of
two instances of adoption of persons belonging to the
same caste as the plaintiff where a child was adopted
at the age above 15 years after the Act came into
force. Thus in my opinion, in view of the settled
position in law as judicially recognized, if the factum of
the adoption is established its validity cannot be
challenged on the ground that the adopted child had
completed the age of 15 years at the time of his
adoption."
2. This observation of the High Court is well supported
by a long line of decisions of that Court including the
subsequent decision of the Full Bench of that Court in
Anirudh Jagdeorao v. Babarao Irbaji, (AIR 1983 Bom
391). In the circumstances we see no reason to
interfere with the impugned judgment. The appeal is,
therefore, dismissed. We shall, however, make no
order as to costs."
33. It is evident that plaintiff has not pleaded that
there is no such custom. The defendant in his written
statement also has not specifically stated that there exists
a custom. Therefore, there was no occasion for the
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defendant to say what is contended by the plaintiff
regarding custom was not correct. Hence, when there was
no such issue which caste burden on the defendant, it was
not necessary that the defendant should have pleaded
about the custom. Under these circumstances, the
adoption cannot be nullified on the ground that there was
no such custom in the locality or the community of the
defendant.
34. The First Appellate Court has considered about
the custom in great detail in paragraph Nos.14 and 15. In
Para 15, it held as below:
"15. In the rulings reported in 2008(3) KCCR 1390
court was dealing with the aspect when presumption
could be drawn u/s. 16 of Hindu Adoption and
Maintenance Act, 1956. In the ruling reported in 2007
STPL (LE) 37873 SC the question of judicial recognition
of custom and usage was not an issue and as such,
said point was not considered. Though in the ruling
reported in AIR 1986 Allahabad 54, AIR 1990, Madras
333, AIR 2004 Rajasthan 196, it is held that it is
necessary to plead and prove the custom and usage
permitting the married persons and person completed
15 years being taken in adoption. However, in the
ruling reported in 2004(2) KCCR 1298 our Hon'ble High
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Court relying on the decision of Munnalal v/s. S.S.
Rajakumar, AIR 1962 SC 1493 Hon'ble Apex Court laid
down as under:
"It is well settled that where a custom is
repeatedly, brought to the notice of the courts of
a country, the courts may hold that custom
introduced into the law without the necessity of
proof in each individual case."
Relying on the said principle our Hon'ble High Court
held that necessity of pleading and proof of custom in
every case does not arise when the Privy Council has
by law declared that there is a custom amongst the
shudras to adopt a boy who is aged above 15 years."
35. Such finding of the First Appellate Court is
proper and correct. As such, the second substantial
question raised by this Court is to be held in the
Affirmative.
36. Coming to the question whether the plaintiff is
entitled for any alternative relief as claimed by the counsel
for the appellants, it is pertinent to note that there is no
such prayer which is made by the plaintiff. The Land
Reforms Appellate Tribunal has come to a categorical
conclusion that there is absolutely no material to show
that the father of the plaintiff and plaintiff were also the
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tenants in respect of the suit schedule property and the
order the Land Tribunal would enure to their benefit. In
the light of such a finding, it is not open for this Court to
hold that the plaintiff was also entitled for a half share in
the suit schedule property. The conclusions reached by the
Tribunal are not in question before this Court. There is
neither pleading nor evidence in respect of the fact that
the plaintiff's father was also in the joint possession and
enjoyment of the suit schedule property as a tenant.
Therefore, such a prayer cannot be acceded to by this
Court. In the result, the appeal fails and hence, the
following:
ORDER
The appeal is dismissed.
The Judgments of the Trial Court in O.S.No.162/2005
dated 07.02.2011 and the First Appellate Court in
R.A.No.61/2011 dated 14.12.2012 are hereby confirmed.
No order as to costs.
Sd/-
JUDGE
