[Cites 7, Cited by 0]
Karnataka High Court
Neelavva W/O Late Basappa Gubbi vs Kumar Falsely Calling Himself As on 18 December, 2025
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RSA No. 5372 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 18TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.5372 OF 2011 (DEC/INJ)
BETWEEN:
SMT. NEELAVVA W/O. LATE BASAPPA GUBBI,
SINCE DEAD BY HER LRS.,
HALESHAPPA A/F BASAPPA GUBBI,
AGE: 40 YEARS, OCC. AGRICULTURE,
R/O. NAGAVAND VILLAGE, HIREKERUR TALUK,
HAVERI DISTRICT-581210.
...APPELLANT
(BY SRI.S.G. KADADAKATTI, ADVOCATE)
AND:
KUMAR FALSELY CALLING HIMSELF AS
ADOPTIVE S/O. LATE BASAPPA GUBBI,
AGED ABOUT 46 YEARS, OCC. AGRICULTURE,
NAGAVAND VILLAGE, HIREKERUR TALUK,
HAVERI DISTRICT-581210.
YASHAVANT ...RESPONDENT
NARAYANKAR (BY SRI. MAHESH SHIVAPUJI, ADVOCATE FOR C/R)
Digitally signed by
YASHAVANT
NARAYANKAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
Date: 2025.12.19
12:12:26 +0530
CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND DECREE DATED
11.02.2011, PASSED BY PRL. SENIOR CIVIL JUDGE AND ITERATE COURT,
HIREKERUR, IN R.A.NO.79/1991 AND THE JUDGMENT AND DECREE
DATED 29.06.1991 PASSED BY THE COURT OF MUNSIFF AND JMFC,
HIREKERUR, IN O.S.NO.154/1989 IS CONFIRMED AND TO ALLOW THE
APPEAL AND DECREE THE SUIT FILED BY THE PLAINTIFF IN
O.S.NO.154/1989 ON THE FILE OF THE LEARNED MUNSIFF AND JMFC,
HIREKERUR AND AWARD THE COSTS THROUGHOUT.
THIS RSA APPEAL HAVING BEEN HEARD AND RESERVED ON
27.11.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
COURT DELIVERED THE FOLLOWING:
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RSA No. 5372 of 2011
HC-KAR
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
The plaintiff in O.S.No.154/1989 who was non-suited by
the judgment dated 29.06.1991 and whose appeal in
R.A.No.79/1991 came to be dismissed by the judgment dated
11.02.2011 is before this Court in second appeal.
2. The factual matrix as is necessary for the purpose of
this appeal is as below:
a. Plaintiff is the wife of late Basappa. Defendant
No.1 is the second wife of Basappa as contended
by the plaintiff. Defendant No.2 claims himself to
be the adopted son of Basappa under a adoption
deed dated 19.04.1974.
b. The suit schedule properties are the properties
held by the deceased-Basappa comprising of two
agricultural lands in R.S.No.26 and 253/2/2, and
the house property situated at Nagavanda village
in Hirekerur Taluk.
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c. The plaintiff contends that she is the wife of
Basappa. The suit schedule properties were owned
by the said Basappa. He died on 18.01.1978. The
plaintiff claims that she is the only legal heir of the
deceased Basappa and the alleged adoption
claimed by defendant No.2 is non est and void,
since the consent of the plaintiff was not taken by
the said Basappa, as required under Section 7 of
the Hindu Adoptions and Maintenance Act, 1956
(for short 'the Act').
d. The plaintiff contends that the deceased-Basappa
had executed a deed of maintenance in favour of
the plaintiff on 15.07.1974 and he had given
possession of 2 acres 20 guntas of land to the
plaintiff to be enjoyed till her lifetime.
e. After death of Basappa, plaintiff gave a varadi to
the Village Accountant to enter her name in the
revenue records pertaining to the suit property. A
revenue dispute was raised and the appeal ended
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in a finding that it would be subject to the final
outcome of the present suit.
3. In response to the summons issued by the Trial
Court, defendants No.1 and 2 appeared through their counsels
and filed a joint written statement. Defendants No.1 and 2
contended that defendant No.1 is the second wife of Basappa
and since she also did not bear any child, Basappa had adopted
defendant No.2 as his son according to the customs prevailing in
their community. It was contended that defendant No.2 was
adopted under a registered adoption deed dated 19.04.1974 and
after such adoption, there were differences between the plaintiff
and the deceased Basappa. They contend that the adoption of
defendant No.2 by Basappa is valid and legal and therefore,
defendant No.2 is also entitled for share in the property as a
legal heir of the deceased- Basappa.
4. On the basis of the above contentions, the following
issues were framed by the Trial Court.
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"ISSUES
1. Whether the Plaintiff proves that she is
the absolute owner of the suit schedule
properties?
2. Whether defendant No.1 proves that she
is legally wedded wife of deceased-
Basappa?
3. Whether defts. prove that defendant No.2
is the legally adopted son of deceased-
Basappa?
4. Whether Plff. proves that she is in lawful
possession of all the suit schedule
properties?
5. Whether the Plff. prove the cause of
action for this suit?
6. What decree or order?
Addl. Issue No.1:
Whether Plff. No.1(a) has got locus-standi
to maintain and continue this suit?"
5. Plaintiff No.1 died during the pendency of the suit
and the adopted son of the plaintiff (who was adopted
subsequent to death of Basappa) has come on record as the
legal representative of the plaintiff.
6. On behalf of plaintiff No.1(a), his brother deposed as
PW.1 and examined eleven witnesses as PW.2 to PW.12. Exs.P.1
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to P.13 were marked. Defendant No.1 was examined as DW.1
and six witnesses were examined as DW.2 to DW.7. Exs.D.1 to
D.73 were marked.
7. After hearing the arguments by both sides, the Trial
Court dismissed the suit by holding the issue No.1 in the
negative, issue Nos.2, 3, 4 and 5 in the affirmative and
additional issue in the affirmative.
8. Being aggrieved, the plaintiff approached the First
Appellate Court in R.A.No.79/1991. After hearing the arguments,
it framed the following points for consideration:
"POINTS
1. Whether the appellants prove that he is the
absolute owner of the suit schedule property?
2. Whether the deft.1/respondent No.1 proves
that she is the legally wedded wife of deceased
Basappa?
3. Whether defendants/respondents prove that
defendant No.2/R.2 is the legally adopted son
of deceased Basappa?
4. Whether plaintiff/appellants proves that she is
in actual and in lawful possession of all the suit
properties as on the date of suit?
5. Whether plaintiff No.1a/appellant No.1a has
got locus standi to maintain and continue the
proceedings?
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6. Whether it is necessary to interfere with the
judgment and decree passed by the trial
court?
7. What order?"
9. The First Appellate Court also reiterated the
reasoning of the Trial Court and it held the point Nos.1, 4, 5 in
the negative, point Nos.2, 3 and 6 in the affirmative and
dismissed the appeal. Being aggrieved, the plaintiff is before this
Court in second appeal. This Court by Order dated 21.06.2012
has framed the following substantial question of law:
"Whether the Courts below are justified in
holding the adoption of respondent is validly made?"
10. Heard the arguments by the learned counsel for the
appellant. None appeared to argue the matter on behalf of the
respondent, despite service of notice.
11. Learned counsel appearing for the appellant relying
on the judgment of the Hon'ble Apex Court in the case of
Ghisalal V/s Dhapubai(D) by Lrs. & Ors1 contend that the
adoption essentially require an active participation and consent
2011 SAR (Civil) 161
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of the wife. He submits that the adoption of defendant No.2 by
the deceased-Basappa was obviously without the consent of the
plaintiff and therefore, the validity of the adoption could not have
been upheld by the Trial Court and the First Appellate Court. It is
submitted that the differences between Basappa and the plaintiff
were evident in the form of the maintenance deed and creation
of charge in respect of the maintenance over one of the suit
schedule property. Therefore, there was no such consent by the
plaintiff to the adoption and hence, the Trial Court and the First
Appellate Court fell in the error in holding that the plaintiff has
failed to prove her case.
12. The plaintiff contended that the deceased Basappa
died leaving behind the plaintiff as the only legal heir to succeed
to his properties and the plaintiff was residing with the deceased-
Basappa. It was contended that since the plaintiff did not bear
any children, there was discontentment and Basappa fell into
illicit relationship with defendant No.1. The plaintiff was residing
in the suit house and due to the differences between the plaintiff
and the said Basappa, maintenance deed was executed by him
and charge was created in respect of one of the suit property
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measuring 2 acres 20 guntas in Sy.No.26/1 which totally
measures 6 acres 1 gunta.
13. Now the plaintiff is claiming that, since she alone is
the legal heir of the deceased-Basappa, she is entitled for all the
properties held by deceased Basappa and in addition to it, there
being a charge over 2 acres 20 guntas as per the maintenance
deed, it is evident that the plaintiff had not given consent to the
adoption of defendant No.2 by the deceased- Basappa.
14. The learned counsel appearing for the appellant has
also relied on the judgment in the case of Brajendra Singh vs.
State of Madhya Pradesh and another2 where again it was
held that Sections 7 and 8 of the Act are mandatory in nature
and the conditions therein have to be complied. It is held that
the capacity of a male Hindu or a female Hindu to take adoption
is recognized and the consent of the spouse is a requirement.
15. Therefore, he contends that the impugned judgments
of the Trial Court as well as the First Appellate Court are not
sustainable in law.
(2008) 13 SCC 161
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16. The perusal of the judgment of the Trial Court shows
that it has meticulously considered the issues framed by it.
17. The Trial Court, while deciding the issues framed by
it in the light of the evidence on record, has held that defendant
No.1 to be the legally wedded wife of deceased Basappa. The
Trial Court is of the view that the evidence showed that marriage
of the plaintiff and Basappa was prior to coming into force of the
Hindu Marriage Act, 1955. The testimonies of the witnesses
showed that the marriage had taken place in the year 1937. The
marriage of defendant No.1 and the deceased Basappa was also
in the year 1945. Therefore, it holds that there was no such
prohibition to contract a second marriage and as such defendant
No.1 is held to be the legally wedded wife of Basappa. The
question whether defendant No.1 is the legally wedded wife of
Basappa is redundant in view of the fact that the Act prescribe
the conditions for a valid adoption. Section 7 of the Act reads as
below:
"7. Capacity of a male Hindu to take in
adoption
Any male Hindu who is of sound mind and is not a
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minor has the capacity to take a son or a daughter in
adoption:
Provided that, if he has a wife living, he shall not
adopt except with the consent of his wife unless the
wife has completely and finally renounced the world or
has ceased to be a Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind.-
Explanation.- If a person has more than one wife
living at the time of adoption, the consent of all the
wives is necessary unless the consent of any one of
them is unnecessary for any of the reasons specified in
the preceding proviso."
18. It may be noted that as per the explanation, the
consent of all the wives is essential for a valid adoption.
Therefore, the question would be whether there was a valid
adoption or not.
19. The Trial Court further observes that the plaintiff was
present at the time of the adoption and therefore, she had given
a tacit consent for the adoption of defendant No.2. This view of
the Trial Court though may be flawed to some extent, in view of
the fact that the plaintiff had not signed the adoption deed,
which is produced at Ex.D.2 dated 19.04.1974. The said adoption
deed shows that defendant No.1 was the second wife and the
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first wife was Neelavva and Neelavva had not begotten any
children. With the consent of the plaintiff, the deceased Basappa
had entered into a marriage with defendant No.1. Ex.D.1 also
states that the plaintiff had performed the marriage of her
husband Basappa with defendant No.1. The adoption deed does
not mention anything about the consent of the plaintiff. It may
be noted that defendant No.1 had signed the said adoption deed.
20. Therefore, the requirement of Ex.D.1 that there was
consent of the plaintiff cannot be deciphered from Ex.D.1. The
Trial Court is of the view that the conduct of the plaintiff showed
her consent for the said adoption.
21. Further, the Trial Court holds that plaintiff had the
knowledge of adoption of defendant No.2 by Basappa and
defendant No.1. The Trial Court relies on the registered
maintenance deed at Ex.D.2 dated 15.07.1974. In other words
about three months later to the adoption of defendant No.2 by
Basappa and defendant No.1, the said Basappa had executed a
maintenance deed as per Ex.D.2 and 2 Acres 20 Guntas of the
land in Sy.No.26/1 was given to the plaintiff for her
maintenance, till her lifetime. This deed also mentions that the
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said Basappa had an adopted son and after the death of the
plaintiff, the property would revert back either to Basappa or his
adopted son i.e, defendant No.2. Though it does not mention the
name of defendant No.2, it mentions that there is an adopted
son.
22. Further, the Trial Court also notes that deceased
Basappa had married defendant No.1 and they lived as husband
and wife. The testimony of the witnesses examined on behalf of
the defendant has been considered in length by the Trial Court
and it holds that they lived as husband and wife to the
knowledge of the public and it being an ancient marriage, it
cannot be questioned after more than 50 years. Therefore, it
repels the contention of the plaintiff that Basappa had an illicit
relationship with defendant No.1 and she was a kept mistress.
Therefore, the Trial Court holds that there being a tacit consent
by the plaintiff for the adoption of defendant No.2 and since she
had not questioned the said adoption within a period of three
years from the knowledge, the plaintiff is not entitled for the
relief sought by her.
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23. The First Appellate Court in the impugned judgment
reiterates the view of the Trial Court. Further it notices that the
plaintiff has not entered the witness box to reiterate her case. It
notes that it was the brother of plaintiff No.1(a), who is none
else than the adopted son of the plaintiff i.e., Haleshappa has
been examined in favour of the plaintiff. It notices that the said
Haleshappa was adopted by the plaintiff under an adoption deed
as per Ex.P.1 on 28.11.1982. The First Appellate Court also
notices that Basappa had died in and around the year 1977 and
as such the adoption of plaintiff No.1(a) was much later to the
death of Basappa. It also notice that even plaintiff No.1(a) did
not enter the witness box, but his brother had entered the
witness box and deposed on behalf of the plaintiff. It also notices
that there is no explanation as to why plaintiff No.1(a) has not
been examined. It observes that there is absolutely no pleadings
to say that plaintiff No.1(a) is the adopted son of the plaintiff
under a deed of adoption. Therefore, the testimony of PW.1, who
happens to be a brother of plaintiff No.1(a) does not come to the
aid of plaintiff. The status of plaintiff No.1(a) was also not
mentioned in the plaint and even after death of the plaintiff, no
such averment has been made by amending the plaint.
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24. Apart from that, the First Appellate Court notices that
the explanation to Section 7 of the Act acts as a bar for valid
adoption, if there are more than one wives. Thereafter, it goes
on to notice that there was a consent that can be inferred from
the conduct of the plaintiff and the adoption of defendant No.2
cannot be held to be invalid. In all other respects, it reiterates
the reasoning of the Trial Court.
25. A perusal of the pleadings would show that plaintiff
contends that she be declared as absolute owner of the suit
schedule property, since she inherited the same from her
husband Basappa and consequential injunction be granted.
Conspicuously, the plaintiff has not sought any relief to invalidate
the adoption of defendant No.2 as per Ex.D.1. The plaint is
cleverly drafted and it seeks to ignore the adoption deed as per
Ex.D.1. It is not that plaintiff was unaware of Ex.D.1 since
reference to Ex.D.1 finds place in the maintenance deed
executed by Basappa in favour of the plaintiff. Not only that, the
plaintiff had received a sum of ₹1,250/- as maintenance on the
same day when Ex.D.2 maintenance deed was executed by
Basappa on 15.07.1974. It may be noted that in Ex.D.2, the said
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Basappa narrates that the relationship between him and the
plaintiff was not cordial and that she should not live in the house
where he is residing. The said document also mentions that the
plaintiff is given only life interest in about 2 Acres 20 Guntas of
land in Sy.No.26/1. Thus, it is evident that the plaintiff cleverly
seeks to ignore the adoption of defendant No.2 and claims her
title to be declared in respect of the entire suit schedule
property.
26. The question of limitation cannot be brought in and it
cannot be said that the plaintiff could not seek her rights in the
suit schedule property by ignoring the Ex.D.1, since she is not a
party to it. If only the plaintiff was a party to Ex.D.1, it was
essential for her to seek a cancellation of Ex.D.1. Since she is not
a party to Ex.D.1, she is entitled to ignore Ex.D.1 in claiming her
rights in the suit schedule property. Therefore, the question of
limitation does not arise.
27. So far as the adoption of defendant No.2 is
concerned, which is covered under issue No.3, the Trial Court
notices the conduct of the plaintiff at length. In paragraph No.13,
it holds that the adoption ceremony was properly held. It relies
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on the testimony of DW.4 and DW.5, who stated that the
adoption ceremony took place in the house of Basappa and the
plaintiff was also present in the adoption ceremony. Even DW.6
and DW.7 also state that plaintiff-Neelavva was present in the
adoption ceremony and took active part in it. Therefore, it
concludes in following words.
"13.
vii) D.W.7 Basavanneppa also deposed that about 12
yrs. back Basappa and his wives Neelawwa and
Parwatewwa took Kumar in adoption. Adoption
ceremony took place at about 9 a.m. Number of
persons had gathered in the house of Basappa.
Basappa, Parwatewwa and Neelawwa were sitting
Kumar was made to sit on their thighs. Nandeppa
and Gourawwa consented to give their child
Kumar in adoption. Basappa, Neelawwa and
Parwatewwa took Kumar and declared that there
after Kumar is their son. Since then Kumar is
residing in the house of Basappa."
28. After observing as above, the Trial Court records
that the consent of defendant No.1 was not obtained for the
adoption of Haleshappa by the plaintiff Neelavva. It notices that
as on the alleged date of adoption of plaintiff No.1(a), defendant
No.2 who was adopted much earlier was alive. Therefore, it
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notices that the condition laid down in Section 11 of the Act is
breached. It may be noted that the question whether plaintiff
No.1(a) was the adopted son of plaintiff-Neelavva is not a matter
which requires any determination, since there is no pleading
about the adoption of Haleshappa by Neelavva. Such adoption is
not stated in the plaint and as such there is no averment in the
written statement on this aspect also.
29. On the above ground, the Trial Court has come to the
conclusion that there was a consent by the plaintiff for adoption
of defendant No.2. Obviously, the relationship between plaintiff
and Basappa soured after the said adoption and within three
months from the date of adoption, there was a maintenance
deed as per Ex.D.2.
30. This Court finds that the said conclusion of the Trial
Court as well as the First Appellate Court by basing their finding
on the testimony of the witnesses though at first blush, appears
to be hit by the provisions of Section 7 of the Act if the testimony
of the witnesses is examined, it appears that plaintiff- Neelavva
had participated in the adoption ceremony of defendant No.2.
The adoption deed was executed after about 20 days of the
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adoption. The records also reveal that the adoption ceremony
was held on an auspicious day of Ramanavami i.e., 01.04.1974.
Therefore, the testimony of the witnesses that plaintiff- Neelavva
was present at the ceremony has to be accepted. It may be
noted that the plaintiff was not present and signed Ex.D.1 on
19.04.1974.
31. The learned counsel for the appellant places reliance
on the judgment of the Hon'ble Apex Court in the case of
Ghisalal (referred supra). In the said case the Hon'ble Apex
Court has gone into provisions of the Act, and comes to the
conclusion that Section 7 of the Act is clear in saying that the
consent of the wife or if there are more than one wives, the
consent of all the wives is necessary. In paragraph 20 of the said
judgment, the Hon'ble Apex Court deals with the term 'consent'
used in proviso to Section 7 of the Act and holds that the party
supporting the adoption has to adduce evidence to prove that
the adoption was done with the consent of the wife. It also
clarifies that this can be done either by producing the document,
evidencing her consent in writing, or by leading evidence to show
that wife had actively participated in the ceremonies of adoption
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with an affirmative mindset to support the action of the husband
to take a son or a daughter in adoption. It also clarifies that a
mere presence of the wife in the ceremonies cannot be treated
as her consent.
32. It is pertinent to note that in the above decision,
consent of the wife-Dhapubai was in question and when there
was neither pleading nor any evidence to prove that the said
Dhapubai was a signatory to the adoption deed or that she was
present at the time of the execution and registration of the
adoption deed, it cannot be assumed that she had consented for
the adoption. In the case on hand, evidently the testimony of the
witnesses clearly indicates that the plaintiff-Neelavva was not
only present at the time of the adoption ceremony, which had
taken place on Ramanavani i.e., on 01.04.1974 and that the
defendant No.2 was made to sit on the laps of Neelava as well as
the defendant No.1 in the presence of Basappa. It is evident that
it is not only the mere presence of the plaintiff but also the
active participation in the ceremonies was involved. After the
adoption ceremony on 01.04.1974, the deed of adoption was
executed on 19.04.1974 as per Ex.D.1. Thus, the evidence on
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record in the form of the testimony of the witnesses clearly
indicates that she had actively participated in the ceremonies.
33. The learned counsel for the appellant has also placed
reliance on the judgment in the case of Brajendra Singh
(referred supra), wherein the Apex Court has examined the
applicability of Section 7 and 8 of the Act and it comes to the
conclusion that they are mandatory. There cannot be any qualms
about the applicability of Section 7 of the Act and the consent of
the wife is a must. By relying on the judgment in the case of
Amarendra Man Singh Bhramarbar v. Sanatan Singh3, it
holds that the wife's consent must be obtained prior to adoption
and cannot be subsequent to such adoption. The facts of the said
case are entirely different, where a crippled lady/Misrhi Bai was
married to one Padam Singh and there was an adoption by
Padam Singh.
34. In view of the above discussion, this Court is of the
view that the judgment in the case of Ghisalal (referred
supra) does not help the appellant in any way since there is oral
testimony of the witnesses in the form of DW4, DW5 and DW6.
AIR 1933 PC 155
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The testimony of DW6 clearly mentions that the defendant No.2
was made to sit on the lap of Basappa and the plaintiff, as well
as the defendant No.1 had vowed to protect the defendant No.2.
The testimonies of these witnesses have not been impeached in
the cross-examination. The cross-examination substantially
concerns with the execution of the adoption deed but not the
ceremony of the adoption that had taken place on 01.04.1974.
35. In view of the above discussion, the substantial
question of law regarding adoption is held in the affirmative and
the additional question of law is held in the negative.
Consequently, the appeal fails.
36. In view of the above discussion, the appeal is
dismissed.
37. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for consideration
and are disposed of.
SD/-
(C M JOSHI)
JUDGE
SSP:Para 1 to 30
YAN: Para 31 to end/ CT:PA
List No.: 1 Sl No.: 55
