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2013 DIGILAW 674 (KAR)

SAVITHRAMMA v. THAYAMMA

2013-06-12

N.KUMAR, V.SURI APPA RAO

body2013
JUDGMENT N. KUMAR, J.-This appeal is preferred by defendants-1 and 2 challenging the judgment and decree of the trial Court, which has decreed the suit of the plaintiffs for partition and separate possession declaring that plaintiffs are entitled to 1/4th share each in respect of suit properties. 2. For the purpose of convenience, the parties are referred to as they are referred in the original suit. 3. Plaintiffs-1 to 3 and defendant No. 1 are the children of Channapillegowda and his wife Smt. Kempamma. The second defendant is the son of the first defendant. Third defendant is the husband of the first defendant and natural father of the second defendant. 4th defendant is the purchaser of item of the schedule property. 4. The case of the plaintiffs is that Channapillegowda, died about 13 years back, leaving behind him, his widow namely Kempamma and plaintiffs and the first defendant to succeed to his estate. Kempamma also died about a year back. Therefore plaintiffs and first defendant are the only heirs who have succeeded to theestate of the deceased Channapillegowda. The properties mentioned in the schedule to the plaint are all self acquired properties of deceased Channapillegowda. After the death of Channapillegowda, his widow Kempamma was looking after the management of the entire schedule properties. After her death, the defendants have developed hostile attitude towards the plaintiffs, setting up false claim and secretly attempting to get the revenue records of the schedule properties changed to her son's name, stating that he is the adopted son of Kempamma. So far to the knowledge of the plaintiffs, the first defendant's son is not adopted either by Channapillegowda or Kempamma. Even if such a document came into existence, it is fraudulent document behind the back of the plaintiffs, which will not give any right to the defendants. The plaintiffs' request to the defendants to have a partition in the family did not have any result. The defendants went on evading and ultimately refused to consent for the division. Therefore the plaintiffs have no option except to file the suit for partition and separate possession of their 1/4th share. In the schedule, the plaintiffs have set out the land bearing Sy. No. 6, which is situated at Kachenahalli Village as item No. 1 of the schedule. Item No. 2 are the lands which are situated at Haralahalli Village which are 8 in number. Item Nos. In the schedule, the plaintiffs have set out the land bearing Sy. No. 6, which is situated at Kachenahalli Village as item No. 1 of the schedule. Item No. 2 are the lands which are situated at Haralahalli Village which are 8 in number. Item Nos. 3, 4 and 5 are the house properties. The properties are more fully described in the schedule with boundaries and extent. 5. After service of summons, the defendants entered appearance. The first defendant filed written statement. She admitted the relationship between the parties. She contended that except item No. 1, all other items of the plaint schedule are self acquired properties of her father and they are his separate properties. To the knowledge of the plaintiffs deceased Channapillegowda and his wife Kempamma took J. Manjunatha, the son of first defendant in adoption and in that connection subsequently both of them have executed a registered adoption deed dated 10.10.1979. Since the date of adoption, the said J. Manjunatha, is the adopted son of Channapillegowda and Kempamma and he was living with them as their son. Subsequently, Channapillegowda executed a registered Will when he was in sound disposing state of mind on 12.11.1980 bequeathing his half share in the schedule properties in favour of his adopted son J. Manjunatha. After the death of Channapillegowda, J. Manjunatha became the absolute owner of the entire suit properties. During the minority of J. Manjunatha, his adopted mother Kempamma was in management and after he attained the majority, he has taken over the management. J. Manjunatha is the absolute owner of the suit properties and he is in possession of the suit properties. The first defendant is not the owner and she is not in possession in any of the suit properties. The suit against the defendants is not maintainable. The suit should have been filed against J. Manjunatha, if the plaintiffs are entitled to any reliefs. The suit is misconceived and is liable to be dismissed. All the revenue records are also changed to the name of J. Manjunatha to the knowledge of the plaintiffs. Therefore they have sought for dismissal of the suit. 6. It is thereafter J. Manjunatha, was impleaded as second defendant in the suit. After service of summons, he has filed written statement contesting the claim. He has taken exception to the description as second defendant and son of Jawaregowda. Therefore they have sought for dismissal of the suit. 6. It is thereafter J. Manjunatha, was impleaded as second defendant in the suit. After service of summons, he has filed written statement contesting the claim. He has taken exception to the description as second defendant and son of Jawaregowda. His case is that he is the adopted son of Channapillegowda. He is not aware of the exact year of the death of Channapillegowda. He denies that Channapillegowda died leaving behind him, Kempamma and the plaintiff and defendants to succeed to his estate. The plaintiffs are aware of the fact that the second defendant is adopted by Channapillegowda and Kempamma and in recognition of such an adoption, they have with all necessary ceremonies also executed a registered adoption deed dated 10.10.1999. As a matter of fact, the plaintiffs also attended to the Adoption Ceremony of this defendant by Channapillegowda and his wife deceased Kempamma. While he was in sound disposing state of mind Channapillegowda has also executed registered Will dated 12.11.1980, bequeathing his share in the properties to this defendant. The fact of adoption, execution of adoption deed and the Will are all known to the plaintiffs. In spite of it, the plaintiffs, on the ill advice of their husbands, have filed this false suit. This defendant being the adopted son and also as a beneficiary under the Will, is entitled to all the properties of deceased Channapillegowda. The plaintiffs are not entitled to any share in the suit schedule properties. To the knowledge of the plaintiffs, all the revenue records have been made in the name of this defendant and this defendant is in possession of all the properties, as such. Therefore he sought for dismissal of the suit. 7. Defendants-3 and 4 have not filed any statement. 8. On the aforesaid pleadings, the trial Court has framed as many as 10 issues, which are as under: (1) Whether all the properties described in the plaint schedule were the ancestral properties of deceased Channapile Gowda? (2) Whether plaintiff and defendants are in joint possession and enjoyment of suit schedule properties? (3) Whether Court fee paid is in sufficient? (4) Whether except item No. 1 all other items of plaint schedule are self-acquisitions of deceased Channapillegowda? (5) Whether Channapillegowda and his wife Kempamma had taken J. Manjunatha the defendant No. 1's son, in adoption? (2) Whether plaintiff and defendants are in joint possession and enjoyment of suit schedule properties? (3) Whether Court fee paid is in sufficient? (4) Whether except item No. 1 all other items of plaint schedule are self-acquisitions of deceased Channapillegowda? (5) Whether Channapillegowda and his wife Kempamma had taken J. Manjunatha the defendant No. 1's son, in adoption? (6) Whether Channapillegowda executed registered will dated 12/11/1980, when he was in sound disposing state of mind bequeathing his half share in the schedule properties in favour of his adopted son J. Manjunatha? (7) Whether J. Manjunatha is in possession of suit properties? (8) Whether suit is bad for non-joinder of necessary and proper parties? (9) Whether item No. 4 of plaint schedule is not with J. Manjunatha and he has sold the same after the death of his father? (10) Whether plaintiff's are entitled to partition and separate possession of suit schedule properties are if so what share? 9. The plaintiffs in order to substantiate their claim, examined Thayamma as P.W-1 and produced 9 documents, which are marked as Ex.P-1 to P-9. On behalf of defendants, second defendant was examined as D.W-2. As natural father, Jaware Gowda was examined as D.W-3. In addition, they have also examined other witnesses namely Vijayar C. Nagappa, Manchegowda, M. Ningegowda and Sitaram as D.W-1 and D.W-4 to 7. They also produced 54 documents, which are marked as Exs.D-1 to D-54. 10. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that properties described in the plaint schedule are not the ancestral properties of deceased Channapillegowda. Plaintiffs and defendants are in joint possession and enjoyment of the schedule properties. Except Item No. 1 of the plaint schedule, all other items in the plaint schedule are self acquisition of deceased Channapillegowda. Channapillegowda and his wife Kempamma have not taken the second defendant J. Manjunatha in adoption. The defendants have failed to prove that the Channapillegowda executed registered Will dated 12.11.1980 when he was in sound disposing state of mind, bequeathing his 1/2 share in the schedule properties in favour of his adopted son J. Manjunatha. As there was no partition of the joint family-property, the trial Court held that each of the daughters of Channapillegowda are entitled to 1/4th share. Accordingly, it decreed the suit. 11. As there was no partition of the joint family-property, the trial Court held that each of the daughters of Channapillegowda are entitled to 1/4th share. Accordingly, it decreed the suit. 11. Aggrieved by the said judgment and decree of the trial Court defendants-1 and 2 have preferred this appeal. 12. Sri. V.N. Madhava Reddy, learned Counsel for the appellant-defendants assailing the impugned judgment and decree of the trial Court held that the registered Adoption Deed as per Ex.D-3 establishes the factum of adoption of the second defendant as the adopted son of Channapillegowda and Kempamma. Further the documentary evidence produced in the case from Ex.D-9 to Ex.D-54 establishes the factum of adoption, as the revenue authorities treating him as adopted son have entered his name in all the revenue records. Further P.W-1, the first plaintiff in her cross examination as unequivocally admitted that on the death of Channapillegowda, it is the second defendant who performed the obsequies and similarly, after the death of Kempamma, it is the second defendant who performed her obsequies ceremonies. The third defendant Jawaregowda, who gave the child in adoption has also deposed before the Court to that effect. The cumulative effect of this evidence on record clearly establishes the factum of adoption. The trial Court without properly appreciating the entire evidence on record, by merely holding that adoption deed is not established has come to the conclusion that the adoption pleaded by defendants-1 and 2 is not proved. This finding is contrary to legal evidence on record. Therefore it requires to be set aside and consequently the plaintiff are entitled to his legitimate share in the plaint schedule properties. 13. Per contra, the learned Counsel appearing for the respondent-plaintiffs pointed out that the adoption deed on which reliance is placed do not satisfy the requirement of Section 16 of the Hindu Adoption and Maintenance Act, 1956 and therefore no presumption under this Section could be drawn regarding the factum of adoption. If that evidence is excluded, there is no evidence worthwhile to come to the conclusion that the adoption took place in the manner pleaded by defendants-1 and 2 and the factum of giving and taking the child in adoption which is sine-quo-non of valid adoption is not established from the evidence on record. Therefore the finding of the trial Court that adoption is not established cannot be found fault with. Therefore the finding of the trial Court that adoption is not established cannot be found fault with. The Will set up by the defendants is not proved. The relationship between the parties is not in dispute and therefore when Channapillegowda died leaving behind his four daughters, each one of them is entitled to equal share and that is precisely what the trial Court has done. Therefore, he submits that no case for interference is made out. 14. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under: 1. Whether the finding of the trial Court that the adoption pleaded by defendants-1 and 2 is not established, requires to be interfered with? 2. If the second defendant is held to be the adopted son of Channapillegowda, then what are the rights to which the parties are entitled to in the schedule properties? Point No: 1 15. The facts are not in dispute. The relationship between the parties are not in dispute. Channapillegowda and Kempamma had no male issues. They had only four daughters. Channapillegowda died on 8.11.1983 leaving behind his widow Kempamma and her four daughters. Kempamma died on 12.7.1995 leaving behind her four daughters. The case of defendants 1 and 2 is, as Channapillegowda had no male issues he adopted the second defendant-J Manjunath, the son of defendants 1 and 3. The same is evidenced by a registered adoption deed dated 10.10.1979. It is the case of the defendants 1 to 3 that Channapillegowda executed a registered Will on 12.11.1980 bequeathing his half share in all the plaint schedule properties in favour of the second defendant. Therefore, on the death of Channapillegowda, his half share devolved on the second defendant. Second defendant as a co-parcener got the remaining half portion. Therefore, he contends he is the absolute owner. The trial Court has recorded a finding that the original of the registered Will dated 12.11.1980 has not seen the light of the day. The certified copy is produced and marked. However, no attesting witness has been examined to prove the said Will and therefore the Will is not proved. When the original Will is not produced, when the attesting witness is not examined, in view of Section 68 of the Evidence Act, the Will is not proved. The certified copy is produced and marked. However, no attesting witness has been examined to prove the said Will and therefore the Will is not proved. When the original Will is not produced, when the attesting witness is not examined, in view of Section 68 of the Evidence Act, the Will is not proved. Therefore, the finding recorded by the trial Court is legal and valid on this aspect and no case for interference is made out. 16. In so far as registered adoption deed is concerned, a reading of the document shows the said document is executed by Channapillegowda and his wife. Defendants 1 and 3 have affixed their signature as attesting witness. Section 16 of the Hindu Adoptions and Maintenance Act, 1956 deals with presumption as to registered document relating to adoption. It reads as under : "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. As is clear from the aforesaid Section when once adoption is reduced into writing and registered and the said document is produced before the Court, the Court shall presume that the adoption has been made in compliance with the provisions of this Act, unless and until it is disproved. Therefore, the presumption flowing under Section 16 is a rebuttable presumption. But, before a presumption could be drawn under the Section, the registered document should satisfy the requirements mentioned in the said Section. The requirement of the Section is the document should be signed by the person giving and the person taking the child in adoption. In other words, the giver of the child should execute the deed in favour of the receiver of the child who also should sign the document. If the said legal requirement is not complied with, condition stipulated in Section 16 are not complied with and therefore no presumption would flow from Section 16. 18. In the instant case, the adoption deed which is duly registered is executed by Channapillegowda and Kempanna, the persons who received the child in adoption. If the said legal requirement is not complied with, condition stipulated in Section 16 are not complied with and therefore no presumption would flow from Section 16. 18. In the instant case, the adoption deed which is duly registered is executed by Channapillegowda and Kempanna, the persons who received the child in adoption. Defendants 1 and 3 have affixed their signatures as consenting witness. When the requirement of the Section is, the deed is to be signed by the person giving and the person taking the child in adoption, when the giver of the child has not executed the said document, the presumption flowing from Section 16 is not attracted. Nonetheless the said document could be used as a piece of evidence in proof of adoption if there is any other convincing evidence on record. Merely because the adoption deed relied upon do not satisfy the requirement of Section 16, it does not follow there is no adoption at all. Adoption as a matter of fact could be proved by acceptable evidence. In the instant case, the adopted son has been examined as DW2 who has spoken about the adoption. DW3, the natural father of the adopted child has also given evidence speaking about adoption. His evidence discloses on the date of adoption, i.e., 10.10.1979 the child-second defendant was given a bath, new clothes were put and he placed the child on the lap of Channapillegowda according to the custom prevailing in that community. Thereafter, second defendant started residing with his adoptive parents. On the next date of adoption a deed came to be executed regarding the said adoption. Subsequently, Channapillegowda also executed a registered Will dated 12.11.1980 bequeathing his half share in the schedule properties in favour of the adopted son. The said Will is also registered. After the death of Channapillegowda, the adoptive mother took care of the second defendant and she was managing all the properties. Once the second defendant attained majority, he took over the management of the properties. He was residing in the house of Channapillegowda. Even after the death of Kempamma he continued to reside in the said property. The second defendant also has spoken about this fact. Other witnesses were examined to prove the due execution of the adoption deed. 19. On the contrary, plaintiffs have pleaded complete ignorance about the adoption, adoption ceremony and execution of the adoption deed. Even after the death of Kempamma he continued to reside in the said property. The second defendant also has spoken about this fact. Other witnesses were examined to prove the due execution of the adoption deed. 19. On the contrary, plaintiffs have pleaded complete ignorance about the adoption, adoption ceremony and execution of the adoption deed. However, in the cross-examination, PW1-the first plaintiff, in unequivocal terms has admitted that when Channapillegowda died it is the second defendant-Manjunath who performed the obsequies ceremony. Similarly, when Smt. Kempamma died it is the second defendant who performed her obsequies ceremony. The aforesaid evidence on record shows that Channapillegowda and Kempamma had no male issues and they had only four daughters. Second defendant being the son of the first-defendant who is the youngest daughter is taken in adoption. Though no presumption could arise under the registered adoption deed, as the requirements of the said document are not complied with, the contents of the said document cannot be ignored. The document has come into existence at an undisputed point of time where it is categorically stated that the second defendant was taken in adoption by Channapillegowda and Kempamma. The evidence on record establishes the second defendant was born on 13.10.1968. When he was taken adoption on 10.10.1979 he was hardly aged 11 years. After adoption he started living with his adoptive father and mother and left the house of the natural father. After the death of his adoptive father, he continued to live in the same house alongwith his adoptive mother Smt. Kempamma. After attaining majority he got the revenue records mutated in his name on the basis of the adoption deed as well as the registered Will. The daughters did not raise any objection for change of katha. In fact, the second defendant has sold away one item of the schedule property also for which also there was any objection nor was there any challenge before filing of the suit. It is not in dispute that, after the death of Channapillegowda and after the death of Smt. Kempamma, it is the second defendant who is in actual peaceful possession of the schedule property cultivating the same, paying taxes and enjoying the property as absolute owner. Now, the evidence of PW 1 clearly discloses that when her father died it is the second defendant who performed the obsequies ceremonies. Now, the evidence of PW 1 clearly discloses that when her father died it is the second defendant who performed the obsequies ceremonies. At this juncture, it is to be remembered that Channapillegowda died leaving behind four daughters. The first defendant is the youngest daughter. Plaintiffs are elder to her. Neither the plaintiffs' husband nor their children nor their sons nor the husband of the first defendant, namely the third defendant, performed the obsequies of Channapillegowda. It is the second defendant, the son of the first defendant, who performed the obsequies ceremonies. When Kempamma died again it is the second defendant who performed her obsequies ceremonies. Ex.D53 is the invitation card printed after the death of Kempamma inviting his relatives to the 11th day ceremony where the second defendant is described as the adoptive son of the said Kempamma. The essence of adoption under the Hindu Law is giving and taking the child in adoption. The natural father has deposed before the Courts saying on the date of adoption, the child was given a bath, he wore new dress and the child sat on the lap of Channapillegowda. This evidence is not seriously challenged. When the adoption took place in 1979, the suit having been filed in 1996, i.e., nearly 17 years after the date of adoption, exact graphic descriptions of the adoption ceremony, who were all present and examination of persons who were present at that time, may not be possible at all times. Therefore, we have to find out from the facts of the case, the evidence on record, whether the case of adoption pleaded is proved by acceptable evidence on record. It is here if the adoption deed had been in accordance with law, the burden of proof that there is no such adoption would have shifted to the plaintiffs. Again when the natural father was present at the time of registering the document and has affixed the signature to the document as a consenting witness, on the ground that they are not the executors of the document, it is held that the requirements of Section 16 are not complied with. Otherwise, the said document was sufficient to hold that the adoption is established. Even in the absence of such a requirement, the recitals of the said document which is proved shows the adoption. Adoption has been acted upon. Otherwise, the said document was sufficient to hold that the adoption is established. Even in the absence of such a requirement, the recitals of the said document which is proved shows the adoption. Adoption has been acted upon. The evidence of PW1 shows that the second respondent as adoptive son performed the obsequies ceremonies of his father and mother and natural father has given evidence. In the light of this evidence on record, the finding of the Tribunal that the adoption is not proved is contrary to the evidence. Therefore, we are satisfied that defendants 1 and 2 have established that the second defendant was given in adoption to Channapillegowda and Kempamma by defendants 1 and 3 and he was their adopted son and by virtue of the said adoption he became the coparcener alongwith his father. In that view of the matter, the first point for consideration is answered in favour of defendants 1 and 2 holding that that the adoption is proved. Point No. 2: 20. The plaint averment discloses that all the properties mentioned in the schedule are the self acquired properties of Channapillegowda. However, the written statement of the first defendant discloses except item No. 1 all other items of the plaint schedule are the self acquired and separate properties of Channapillegowda. The same fact is reiterated by the second defendant also. In fact, defendants have produced Exs. D5, D6, D7, the sale deeds in which Channapillegowda acquired the suit item except item No. 1. The aforesaid pleadings and the evidence on record clearly establishes except item No. 1 all other items of the suit schedule are the self acquired properties of Channapillegowda. The evidence on record shows first item is the property inherited by Channapillegowda from his father. It hardly measures 1 acre 6 guntas of land. As is clear from the evidence on record Channapillegowda had four daughters. Sufficiently a big family. Therefore, the income from the said land was hardly sufficient to meet the requirements of the family. Therefore, it cannot be said that there was any nucleus in the hands of Channapillegowda to acquire any properties. Therefore, all the properties which are acquired by him are from out of his own income and self acquisitions. Sufficiently a big family. Therefore, the income from the said land was hardly sufficient to meet the requirements of the family. Therefore, it cannot be said that there was any nucleus in the hands of Channapillegowda to acquire any properties. Therefore, all the properties which are acquired by him are from out of his own income and self acquisitions. In the light of this material on record when Channapillegowda died leaving behind his four daughters and one adopted son, in all the self acquired properties all of them will be entitled to equal share, i.e., 1/5th share. 21. In so far as item No. 1 which is an ancestral property is concerned, on his death half share belongs to the adopted son-second defendant and the remaining half share would be the share of Channapillegowda. By virtue of Section 6 of the Hindu Succession Act, 1956 prior to amendment, the said half share devolves by way of succession on his class I heirs, namely his wife, four daughters and the son. Now that his wife is no more, four daughters and the adopted son take the said property in equal share. Therefore, each of the plaintiffs and first defendant would take 1/10th share in the first item of the plaint schedule property and the second defendant would take 6/10th share in the said property. Therefore, to that extent the decree passed by the trial Court requires to be modified. Hence, we pass the following order: (i) Appeal is allowed, (ii) The judgment and decree of the trial Court is hereby set aside. (iii) The second defendant is held to be the adopted son of Channapillegowda and Kempamma. (iv) First item of the schedule property is held to be ancestral property of Channapillegowda in which plaintiffs 1 to 3 and first defendant would take 1/10th share each whereas the second defendant would take 6/10th share. (v) In so far as remaining properties are concerned, they are self acquired properties of Channapillegowda in which plaintiffs 1 to 3, defendants 1 and 2 would all take equal share, i.e., 1/5th each. (vi) Now that the plaintiff No. 1 and defendant No. 1 are dead and their LRs are brought on record, the share allotted to them would devolve on their LRs. Parties to bear their own costs.