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2012 DIGILAW 1278 (AP)

Thavva Venkata Punna Rao v. Tavva Sriramulu

2012-12-21

N.R.L.NAGESWARA RAO

body2012
JUDGMENT : 1. The plaintiff in O.S.No.98 of 1986 on the file of the court of Senior Civil Judge, Narasaraopet is the appellant herein. Pending disposal, the first respondent is reported to have died and appellant and second respondent are already on record as legal representatives of first respondent. 2. The suit was one filed for partition of the properties alleging that one Tavva Venkata Subbamma was the wife of the first defendant and during her lifetime first defendant requested the natural parents of the plaintiff to give the plaintiff in adoption. The natural parents of the plaintiff agreed and have given the plaintiff in adoption by handing over him to the first defendant on 10-03-1982, and he was brought to the house of the first defendant. In the meanwhile, Tavva Venkata Subbamma died on 13-01-1983. A formal adoption ceremony took place on 22-05-1983 and a deed of adoption was also executed. Tavva Venkata Subbamma died possessed of two houses and the plaintiff and first defendant are entitled for half share. She also left behind some movable properties. First defendant conveyed one house in favour of his second wife-second defendant. The properties were acquired by the first defendant with the family business and therefore the plaintiff has got all the rights in the suit schedule property for partition. 3. The first defendant filed a written statement contending that there was no adoption on 10-03-1982. The plaintiff was brought to the house of the first defendant only to bring him up. Actually the adoption has taken place on 22-05-1982 and it was not valid. The properties are not liable for partition and in the partition with the father, item No.1 of plaint “A” schedule alone was allotted to the first defendant and it was sold to one K.Veeraiah and thereafter the consideration was used for the construction of the house. There is no ancestral nucleolus. The defendant also claimed that certain of the properties are his self acquired properties and certain of the properties belong to the second defendant as her “stridhana” properties. The adoption being not valid as the plaintiff was aged more than 15 years by the date of adoption and as there was no proper taking and giving the suit is liable to be dismissed. 4. The adoption being not valid as the plaintiff was aged more than 15 years by the date of adoption and as there was no proper taking and giving the suit is liable to be dismissed. 4. The court below has framed necessary issues and after considering the evidence on record, accepted the contention of the plaintiff that there was adoption on 22-05-1983 and there is also a custom in the “Vysya” Community where the boy aged 15 years can be validly given in adoption. It was also accepted by the decisions of this court and consequently accepted the customary adoption. Having considered so, the court below found that the adoption was in contravention of Section 11(vi) of the Hindu Adoption and Maintenance Act, 1956. Now the points that arise for consideration are:- 1. Whether the adoption is not valid as held by the court below? 2. Whether the plaintiff is entitled for partition of the properties and if so what are the properties? POINTS:- 5. As can be seen from the evidence on record, that first defendant accepted the plaintiff through his younger brother and his wife to receive the plaintiff as his adopted son. A ceremony was performed and PW.4 who is brother of the first defendant also supported the same. Therefore, from the material evidence on record, it was found by the court below that factual ceremony of adoption has taken place but, however, the receiving of the boy in adoption was not done by the first defendant and he has no authority to delegate the power to PW.4 and consequently held that the adoption is not valid. The court below has extracted the commentaries of “S.V.Gupta” on Hindu Law and found that the delegation of power only could be to the person giving and not to the person receiving. Consequently, he held that the adoption is not valid. The court below has extracted the commentaries of “S.V.Gupta” on Hindu Law and found that the delegation of power only could be to the person giving and not to the person receiving. Consequently, he held that the adoption is not valid. In this connection, it is useful to refer to Section.11 of the said Act, which reads as under:- “Section 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 datta homam shall not be essential to the validity of an adoption.” 6. A reading of the above Section, unambiguously shows that the power to delegate is available to both the persons giving and also to the persons taking in adoption. In this connection, the learned counsel for the appellant relied upon a decision reported in Lakshman Singh Kothari Vs. A reading of the above Section, unambiguously shows that the power to delegate is available to both the persons giving and also to the persons taking in adoption. In this connection, the learned counsel for the appellant relied upon a decision reported in Lakshman Singh Kothari Vs. Smt.Rup Kanwar( AIR 1961 S.C. 1378 )wherein in para.10 it was held as under:- “ 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 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.” 7. The above decision unambiguously shows that the delegation can be either by person giving or the person taking. The Supreme Court placed reliance on the judgment of the Madras High Court reported in Behara Viyyamma and Ors. Vs. Ayyagari Veera Venkata Satya Suryaprakasa Rao(AIR 1942 MADRAS 379), which is also relied on by the counsel for the appellant. Therefore, in view of the above circumstances, the court below has not properly applied the law, erred in holding that there was no adoption since there was no power of delegation to receive the boy in adoption. Evidently, the first defendant could not have taken the boy in adoption as he has no wife and consequently it has to be delegated to his brother-PW.4 and his wife. Evidently, the first defendant could not have taken the boy in adoption as he has no wife and consequently it has to be delegated to his brother-PW.4 and his wife. The adoption is found valid on all other aspects and consequently the findings of the lower Court on this aspect has to be set aside and it is to be held that the plaintiff is the adopted son of the first defendant. 8. Having considered the above aspect, the court below also considered as to what would be the properties that will be available for partition. Considering the material evidence on record, the court below found that items 3 and 4 of the schedule were received by the first defendant from his maternal uncle as a gift and, therefore, they are liable for exclusion. The court also found that Item 1 of “A” schedule is the ancestral property which the first defendant got under Ex.B-5 and consequently it is liable for partition. The court also found that Item 2 of “A” schedule was purchased from joint family nucleolus and is liable for partition, so also Item No.5. Sofar as the Item No.6 is concerned, part of the property was decreed to be partitioned and part of Item No.6 which was in the name of the wife of the first defendant, which was conveyed by the first defendant in favour of second defendant, was excluded. The court below found the property under Ex.B-13 is, therefore, to be excluded. Remaining part of Item No.6 of “A” Schedule is liable for partition. The plaintiff has failed to prove the existence of “C” to “F” schedule properties and the relief was negatived. Sofar as the “B” Schedule properties are concerned, as per the Commissioner’s report, the properties found shall be divided since the first defendant has failed to prove that the properties are the “Stridhana” of the second defendant. Therefore, since there is no other material to disturb the findings of the court below about the partition of the properties, the findings of the court below is confirmed. The court below found that the court fee has to be paid ad valorem, evidently, because the plaintiff was found to be not adopted son but since the plaintiff is now found to be the adopted son having joint rights in the properties, the payment of fixed court fee of Rs.200/- is valid. The court below found that the court fee has to be paid ad valorem, evidently, because the plaintiff was found to be not adopted son but since the plaintiff is now found to be the adopted son having joint rights in the properties, the payment of fixed court fee of Rs.200/- is valid. Accordingly, the points are answered. In the result, the Appeal Suit is allowed holding that the plaintiff is the adopted son of the first defendant and there shall be a partition of the Plaint “A” Schedule Items 1, 2, 5 and also part of Item No.6 excluding the property under Ex.B-13. The decree for “B” Schedule properties shall be as per the findings of the court below. Each party do bear their own costs.