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2006 DIGILAW 523 (KAR)

S. T. KRISHNAPPA v. PUTTAMMA

2006-06-29

H.N.NAGAMOHAN DAS, S.H.BANNURMATH

body2006
JUDGMENT The unsuccessful plaintiff having lost the suit for declaration, partition and possession in O.S. No. 4472 of 1991 on the file of the learned XXII Additional City Civil Judge, Bangalore, has approached this Court in the present appeal. 2. The brief facts giving rise to the present appeal as per the pleadings of the parties are as follows.- So far as the relationship between the parties is concerned, there is no much dispute on either side. Plaintiff Krishnappa is the son of one late S.M. Thimmadasappa and his wife Smt. Puttamma/the original defendant 1 (deceased). The erstwhile defendant 3-Kumari Menaka since deceased was the other child of said Thimmadasappa and Puttamma. The said Thimmadasappa had a brother by name Solur Thimmaiah, who was issueless. 3. As said Thimmaiah was issueless as per the Hindu custom in order to carry out the lineage, it appears Thimmadasappa and his wife gave the plaintiff-Krishnappa in adoption in a valid adoption ceremony on 15-2-1945. There was a written adoption deed, which came to be registered also. Thereafter, after the death of Thimmadasappa, the plaintiff has approached the Civil Court in the present suit claiming that as under the registered adoption deed and as per the intention of the parties, he was adopted in 'Dwyamushyayana' form of adoption and since his genitive father - Thimmadasappa had ancestral as well as self-acquired properties, after his death, the plaintiff is entitled for partition and share in those properties. In this regard as his sister Kamala expired during the pendency of the suit, her children defendants 2 and 3 were made parties to represent the branch of Kamala. The genitive mother Puttamma is arrayed as defendant 1. 4. The defendants on appearance filed their written statement inter alia contending that plaintiff has no manner of right, title or interest in respect of the suit schedule properties; that the claim of the plaintiff by the theory of 'Dwyamushyayana' form of adoption put forth by the plaintiff is false since the intention of the parents was to give Krishnappa in adoption simpliciter and hence prayed for the dismissal of the suit. On the basis of the pleadings of the parties, the Trial Court framed the following issues: "1. Whether the plaintiff proves his right over the suit schedule properties? 2. Whether the plaintiff is entitled for 2/3rd share in the suit schedule properties? 3. On the basis of the pleadings of the parties, the Trial Court framed the following issues: "1. Whether the plaintiff proves his right over the suit schedule properties? 2. Whether the plaintiff is entitled for 2/3rd share in the suit schedule properties? 3. Whether the plaintiff is entitled for the accounts? 4. What decree or order? Additional issue: Whether the defendants prove that the Court fee paid is sufficient?" 5. To substantiate his claim, the plaintiff examined himself as P.W. 1 and got marked Exs. P. 1 to P. 10. On the defendant side, defendant 2 examined himself as D.W. 1 and got marked Exs. D. 1 to D. 16. The Trial Court as already noted on the basis of the pleadings, evidence of the parties held that the plaintiff has failed to prove that he was adopted in the 'Dwyamushyayana' form and as such ultimately rejected his claim for partition in the suit schedule properties of his genitive father -late Thimmadasappa. Hence, the present appeal. 6. Sri Ram Bhat, learned Senior Counsel appearing for the appellant, taking us through the entire evidence and the impugned judgment as well as the case-law, vehemently contended that the judgment and decree passed by the Court below is contrary to law and evidence on record; that the approach of the Court below in respect of finding' as to whether the plaintiff was adopted in 'Dwyamushyayana' form is illegal. Relying upon the Commentaries in Hindu Law by S.Y. Gupte and Mayne's treatise on Hindu Law and Usage and Mulla on Principles of Hindu Law it is contended that there is a presumption in favour of the adoption where a only son is given in adoption between a natural father and the adoptive father and when the genitive father and the adoptive father are brothers, consequently it should be presumed in favour of the boy being the son of two fathers. In this regard the learned Counsel also relied upon the pronouncement of the Apex Court in the case of Rajgopal (dead) by L.Rs v Kishan Gopal and Another1. It is also contended that the observation of the Trial Court that as there is no mention of 'Dwyamushyayana' in the agreement, the Trial Court committed an illegality in rejecting the plaintiffs case only on the ground that there is no mention of such form of adoption in the agreement deed. It is also contended that the observation of the Trial Court that as there is no mention of 'Dwyamushyayana' in the agreement, the Trial Court committed an illegality in rejecting the plaintiffs case only on the ground that there is no mention of such form of adoption in the agreement deed. It is contended that even if the subsequent conducts of all the parties are considered, this dual capacity would have been more clear to the Court. Having failed to consider the material, it is submitted that the impugned judgment and decree are liable to be set aside and the plaintiffs suit be decreed as prayed for. 7. On the other hand Sri R.B. Sadashivappa, learned Counsel appearing for the defendants argued in support of the Trial Court findings. 8. On the basis of the arguments advanced and pleadings of the parties, the only question before us is: "1. Whether the plaintiff has proved his adoption to be of 'Dwyamushyayana' character?" 9. It is to be noted that 'Dwyamushyayana' form of adoption is only a variety of adoptions prevalent in Hindu family. The term 'Dwyamushyayana' is applicable to an adopted son retaining his voluntary relationship to his natural father with is acquired relation to his adoptive parents and as such is entitled to claim succession or heirship in both the families. In Mayne's Treatise on Hindu Law and Usage the peculiar form of 'Dwyamushyayana' is mentioned thus: "221. An exception to the rule that adoption severs a son from his natural family exists in the case of what is called a 'Dwyamushyayana' or son of two fathers. This term has a two-fold acceptation. Originally it appears to have been applied to a son who was begotten by one man upon the wife of another, but for and on behalf of that other. He was held to be entitled to inherit in both families, and was bound to perform the funeral oblations both of his actual and his fictitious father. This is the meaning in which the term is used in the Mitakshara; but sons of this class are now obsolete. Another meaning is that of a son who has been adopted with an express or an implied understanding that he is to be the son of both fathers. This again seems to take place in different circumstances. This is the meaning in which the term is used in the Mitakshara; but sons of this class are now obsolete. Another meaning is that of a son who has been adopted with an express or an implied understanding that he is to be the son of both fathers. This again seems to take place in different circumstances. One is what is called the anitya, or temporary adoption, where the boy is taken from a different gotra, after the tonsure has been performed in his natural family. He performs the ceremonies of both fathers, and inherits in both families, but his son returns to his original gotra. This form of adoption is also obsolete. The only form of 'Dwyamushyayana' adoption that is not obsolete is the nitya or absolute 'Dwyamushyayana' in which a son is taken in adoption under an agreement that he should be the son of both the natural and adoptive fathers". Similarly the learned author Mulla on Principles of Hindu Law has enumerated the form of 'Dwyamushyayana' adoption as follows.- "486. (1) Where a person gives his son to another under an agreement that he should be considered to be the son of both the natural and the adoptive fathers, the son so given in adoption is called 'Dwyamushyayana'. In this form of adoption, it is essential to prove such an agreement and it should also be proved that there was the ceremony of giving and taking of the adoptive son. (2) A 'Dwyamushyayana' inherits both in his natural and adoptive families". So also learned author Raghavachariar in his treatise Hindu Law has enumerated the form of 'Dwyamushyayana' adoption as follows.- "174. 'Dwyamushyayana' is the name given to a person who is given in adoption under an agreement that he should be considered to be the son of both the adoptive father and the natural father. In this form, it is essential to prove such an agreement and also the performance of the ceremony of giving and taking of the adoptive son". 10. There is absolutely no dispute in respect of this form of adoption but what is to be noted is that this is one of the modes of adoption and as such, the evidence or proof required for normal adoption are also applicable to this type of adoption also. 10. There is absolutely no dispute in respect of this form of adoption but what is to be noted is that this is one of the modes of adoption and as such, the evidence or proof required for normal adoption are also applicable to this type of adoption also. This has been made clear by Rajasthan High Court in the case of Dhani Bai and Others v Neem Kanwar and Others1. However, considering Section 47 of the Indian Evidence Act, 1872 and the mode required as well as the earlier pronouncement of the Bombay High Court regarding the deeming provision quoted above Laxmipatirao Shrinivas Deshpande v Venkatesh Tirmal Deshpande2, it is held that though there may be absence of such clause in the agreement deed, the Court can by looking into the subsequent conduct of the parties find out as to what mode of adoption was performed. 11. Keeping in view these aspects in mind, we have considered the evidence on record in detail. Of course, the plaintiff as P.W. 1 has spoken to the mode of adoption he underwent and has relied upon certain subsequent documents like his seeking permission from the Corporation of Bangalore for erecting the Samadhi of his deceased genitive father, the invitation card for performing obsequies ceremony issued in his name and copies of some plaints wherein the plaintiff and his genitive mother Smt. Puttamma had taken the stand that the plaintiff though was given in adoption to Thimmaiah, that adoption was in 'Dwyamushyayana' mode and as such, he had right in the properties in dispute admittedly belonging to his genitive father/Thimmadasappa. 12. On the other hand, defendant 2 has mainly relied upon the adoption deed which is marked as Ex. D. 1 and the last Will and testament of Thimmadasappa himself, dated 26-12-1981 under which he has settled his properties on defendants 2 and 3 as well children of the plaintiff himself. These are the main documents, which have been referred to by both sides. 13. So far as consideration of plaint in some other litigation is concerned, at the outset it is to be noted that since the statements or pleadings of parties will not take the place of proof. The pleadings in a plaint are to be supplemented by acceptable evidence, which the other side will try to controvert. 13. So far as consideration of plaint in some other litigation is concerned, at the outset it is to be noted that since the statements or pleadings of parties will not take the place of proof. The pleadings in a plaint are to be supplemented by acceptable evidence, which the other side will try to controvert. Hence, in our view, no much importance can be attached to the copies of the plaints relied upon by the plaintiff to show the subsequent conduct of his genitive mother or himself. So far as the invitation for obsequies is concerned or permission sought from the Corporation for erecting Samadhi of his genitive father again that by itself would not be sufficient to show what mode of adoption he was taken to. 14. As rightly pointed out by the learned Authors on Hindu Law referred to above basically it is the adoption deed which must reflect the intention of adoptive or genitive father to treat the boy as son of both families. It is to be noted that in the present case no such intention is apparent in the adoption deed Ex. D. 1 and on the other hand if one reads all the clauses together the intention of Thimmadasappa and to give the plaintiff in adoption to his brother is proved and by bare reading of this adoption deed, it is apparent that it is normal adoption and not 'Dwyamushyayana' adoption. No doubt as rightly argued by the learned Counsel for the appellant even if there is no such clause mentioned in the agreement, the Court can look into the subsequent conduct of the parties and find out what mode of adoption was adopted by the genitive and adoptive fathers. It is to be noted that except the self-serving statement of the plaintiff, there is absolutely no independent witness examined by the plaintiff. There may be people who were present at the time of adoption including the close relatives and they would have been the best persons to state as to what type of adoption the plaintiff was taken. As we have already noted, the other documents like plaint copies, invitation for obsequies of even the permission to erect Samadhi are not helpful to the plaintiff to show the intention of the parties. 15. On the other hand a vital document as relied upon by the defendants is Ex. As we have already noted, the other documents like plaint copies, invitation for obsequies of even the permission to erect Samadhi are not helpful to the plaintiff to show the intention of the parties. 15. On the other hand a vital document as relied upon by the defendants is Ex. D. 2-the Will and a testament dated 26-12-1981. It is to be noted that Thimmadasappa expired in the year 1984 i.e., 3 years after the Will was executed by him. It is also important to note that this Will is not challenged by the plaintiff and on the other hand as is admitted, his sons who were the beneficiaries under the Will have taken their shares in the properties of Thimmadasappa. If really the plaintiff was given in adoption in 'Dwyamushyayana' mode, there would have been certainly mention of this aspect in the last Will and testimony of the genitive father Thimmadasappa. Apart from the absence of the same, in fact at para 3 it is in unequivocal terms stated that the plaintiff the only son of Thimmadasappa given in adoption (general form) to his brother Solur Thimmaiah. In the very next paragraph it appears Thimmadasappa himself had certain grievances against the conduct of the plaintiff and as such without giving him any share under the Will, Thimmadasappa had kept in mind the interest of his grand children (plaintiffs sons) and has given them certain properties. In our view Ex. D. 1 clearly speaks about the intention of Thimmadasappa the genitive father. It is to be noted that this is the only document, which can be considered for the conduct or as to the mind-set of the genitive father while he gave plaintiff in adoption. The other documents relied upon by the plaintiff's as well as defendants have come into existence only after the death of Thimmadasappa and they prima facie do not reflect upon the intention of Thimmadasappa. 16. As observed by the Hon'ble Supreme Court in Rajgopal's case, to constitute 'Dwyamushyayana' there must be a special agreement between two fathers to that effect; or the relationship must result from some of the other circumstances indicated by Sir William MacNaghten. 16. As observed by the Hon'ble Supreme Court in Rajgopal's case, to constitute 'Dwyamushyayana' there must be a special agreement between two fathers to that effect; or the relationship must result from some of the other circumstances indicated by Sir William MacNaghten. In every case of absolute 'Dwyamushyayana' form of adoption, there must be an agreement to the effect that the person given in adoption shall be the son of both i.e., the natural father as well as the adoptive father and as such an agreement must be proved like any other fact by the party alleging the same. 17. On careful consideration of the entire evidence, in our view, the plaintiff has utterly failed to substantiate his claim of adoption in 'Dwyamushyayana' form. The Trial Court has considered these aspects in detail and in our view as noted above, there is no reason to differ from the conclusion arrived at by the Trial Court. 18. At this stage the learned Counsel for the appellant contended that an opportunity be given to the plaintiff to substantiate his case by remanding the case for fresh enquiry. 19. In the result and for the reasons stated above, we find no merit in the plaintiff's case and as such affirming the judgment and decree of the Trial Court, dismiss the appeal. In the peculiar facts and circumstances of the case, there shall be no orders as to costs. 20. In our view this request cannot be considered in view of the fact that all that the plaintiff was required to show the conducts prior to the death of his genitive father and having utterly failed to do so, now it is not open for him to fill up the lacuna as noted by the Trial Court or this Court. Hence, the request for remand is also rejected.