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2015 DIGILAW 392 (KAR)

M. S. SHEKHARAPPA v. VEERAMMA

2015-04-08

A.S.BOPANNA

body2015
JUDGMENT 1. The appellant herein is the plaintiff in O.S.No.6/2002. In a suit filed seeking for declaration that he is the successor to the estate and liabilities of his adoptive father Late Nanjappa and in that light sought for partition and separate possession of the suit schedule property on declaring the gift deed executed by the defendant No.1 in favour of defendant No.2 is not binding insofar as the share of plaintiff is concerned, the trial Court decreed the suit by its judgment and decree dated 11.12.2006. The defendants claiming to be aggrieved by the same were before the Lower Appellate Court in R.A.No.9/2007. The Lower Appellate Court has by its judgment dated 23.11.2010 allowed the appeal and set aside the judgment and decree passed by the trial Court. The plaintiff is therefore before this Court in this second appeal under Section 100 of CPC against the divergent judgments. 2. The brief facts on which this case rests and is to be noticed to the extent for consideration of this appeal is as follows: Late Nanjappa and the original first defendant Kallappa were very close friends. They accordingly purchased the property bearing Sy.No.25/2, measuring 07 acres and 30 guntas situate at Hireyemmiganur Village, B.Durga Hobli, Holalakere Taluk, more fully described in the suit schedule jointly under a registered sale deed dated 23.07.1962. The katha was thereafter mutated in joint names. The original sale deed was retained with Late Nanjappa. The case of the plaintiff is that the said Nanjappa did not have male issues and as such adopted the plaintiff under a registered adoption deed dated 22.11.1978. The plaintiff is none other than the nephew of Late Nanjappa, being the younger son of Shivappa i.e., the brother of Late Nanjappa. Ever since the adoption, he lived with him as his son and was also managing his share of the suit schedule property. Despite the said position, the first defendant after a long time subsequent to the death of Late Nanjappa, taking advantage of the fact that his father’s name was also Nanjappa, secured the change of revenue entries to his name in respect of the suit schedule property and thereafter executed a registered gift deed dated 17.05.2001 gifting the suit schedule property to the second defendant. In that view, when the second respondent sought to exercise right over the property, the plaintiff chose to file the suit. 3. In that view, when the second respondent sought to exercise right over the property, the plaintiff chose to file the suit. 3. The defendants on appearance filed the written statement and disputed the claim as put forth by the plaintiff. Though the fact relating to the sale deed dated 23.07.1962 is not disputed, it is the contention of the defendants that the entire sale consideration was paid by defendant No.1. Due to they being close and since Kallappa was illiterate and not worldly wise he depended on Nanjappa in respect of all transactions. The original document was therefore with Nanjappa is the contention. The defendants further disputed the claim that the plaintiff was adopted by Nanjappa. The defendants therefore claimed absolute right in respect of the suit schedule property. It was also contended that Late Nanjappa had two daughters who were not made parties to the suit. Hence, they sought for dismissal of the suit. 4. The trial Court on taking note of the rival contentions, framed as many as seven issues for its consideration, which read as hereunder: (i) Whether the plaintiff proves that he is the joint owner and in joint possession of suit properties along with defendant No.1? (ii) Whether the plaintiff proves that he is the adopted son of Nanjappa s/o Mallapala Mallikarjunappa? (iii) Whether the plaintiff proves that the Gift deed dated 17.05.2001 executed by defendant No.1 in favour of defendant No.2 is not binding on the share of plaintiff? (iv) Whether the plaintiff has got half share in the suit property? (v) Whether the suit is properly valued and Court fee paid is correct? (vi) Whether the suit is bad for nonjoinder of necessary party? (vii) What decree or order? 5. In order to discharge the burden, the plaintiff initially examined his elder brother, PA holder as PW1 and three witnesses as PW2 to 4 and thereafter examined himself as PW5. The documents were relied upon as Ex1 to 19. The defendants did not examine any witness nor rely upon documents. 6. The trial Court on analysing the evidence has held issues No. 1 to 5 in the affirmative, issue No.6 in the negative and accordingly decreed the suit. The adoption of the plaintiff has been accepted and the right to half share in the suit schedule property is upheld. The defendants did not examine any witness nor rely upon documents. 6. The trial Court on analysing the evidence has held issues No. 1 to 5 in the affirmative, issue No.6 in the negative and accordingly decreed the suit. The adoption of the plaintiff has been accepted and the right to half share in the suit schedule property is upheld. The Lower Appellate Court on the other hand has arrived at the conclusion that the adoption cannot be held valid as the ceremonies which are necessary are not proved to have been performed. Since the claim of the plaintiff that he is the adopted son is not accepted, the right as claimed to the property has been negatived and accordingly the suit is dismissed. The Lower Appellate Court while arriving at such conclusion has referred to portions of the oral evidence especially the cross examination of the witnesses to conclude that the ceremonies for the purpose of adoption has not been performed. In that view, this Court by the order dated 22.07.2011 has framed the following substantial question of law for consideration in this second appeal, “Whether the first appellate Court is legally correct in refusing to consider Ex. P4, the registered adoption deed dated 22.11.1978 on the ground that no religious ceremony are performed for giving and taking adoption?” 7. In the above background, I have heard Sri. A.Keshav Bhat, learned counsel for the appellant and Sri. K.B.K. Swamy, learned counsel for respondents and perused the appeal papers including the records received from the Lower Courts. 8. The parties would be referred to in the same rank as assigned to them before the trial Court, for the purpose of convenience and clarity. 9. From the very rival contentions noticed above, since the defendants have disputed that the plaintiff is the adopted son of Late Nanjappa, the plaintiff in order to prove the same, in addition to examining the witnesses has relied on the registered adoption deed dated 22.11.1978 which is marked in evidence as Ex P4. In that view, the learned counsel for the plaintiff has referred to Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (‘HAM Act’ for short) which reads as hereunder, “16. Presumption as to registered documents relating to adoption. In that view, the learned counsel for the plaintiff has referred to Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (‘HAM Act’ for short) which reads as hereunder, “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.” 10. In that light, the learned counsel for the plaintiff has referred to the adoption deed at Ex P4 in detail to point out that the document refers to the biological parents of the plaintiff having given in adoption and the adoptive father having taken in adoption, all of whom have subscribed their signature to the document. The wife of Nanjappa was not living at that time and as such obtaining her consent did not arise. Hence, it is contended that the Court is required to presume the adoption to be valid until it is disproved. The learned counsel for the defendants would however contend that the document itself would indicate the adoption is not valid if the age of the plaintiff stated therein is taken note. Further, it is contended that the giving and taking is not established, nor the ceremonies have been performed. The learned counsel has relied on the decision of the Hon’ble Supreme Court, in the case of M. Gurudas and others vs. Rasaranjan and others, 2007 (2) KCCR 1121 wherein it is held that in order to prove valid adoption, it would be necessary to bring on record that there had been an actual giving and taking ceremony. Performance of “datta homam” was held imperative, subject to just exceptions. Performance of “datta homam” was held imperative, subject to just exceptions. The learned counsel has also relied on the decision of this Court in the case of Sri Ramachandraiah vs. Sri V. Narayana and others, ILR 2008 Kar 4420 wherein it is held that the essential ingredient of an adoption is, act of giving and receiving of boy from one family to another and in the facts arising therein it was held that there is no evidence to show that there was physical act of giving by his natural mother to the hands of the adoptive mother. 11. Having carefully perused both the above cited decisions, though there can be no two opinions about the position of law enunciated therein, I am however of the view that the said decisions are not of assistance to decide the question raised before me. That is for the reason that in the said cases the adoption had not been claimed on the basis of a registered deed and the issue relating to the presumption arising under Section 16 of Hindu Adoptions and Maintenance Act, 1956 (‘HAM Act’ for short) in that circumstance was not what was considered therein and it is in that view the adoption was to be established by proving that the essential ingredients for a valid adoption was performed. In the instant case, the registered adoption deed is marked as Ex.P4 due to which it is claimed that presumption arises until it is disproved. On this aspect, both the learned counsel have referred to the decision of this Court in the case of Gangavva and others vs. Ningavva and others, 2008 (4) AIR Kar R 176. In the said decision, the presumption arising under Section 16 of HAM Act arose for consideration and this Court held that before a presumption could be drawn, the conditions stipulated under the section have to be fulfilled, i.e., the registered document evidencing adoption should be produced before the Court; it should be shown that the said document is signed by the person giving the child in adoption; it should be shown that it is signed by the person taking the child in adoption. The learned counsel for the plaintiff has also relied on the decision in the case of Pathivada Ramaswami and another vs. Korada Surya Prakasa Rao and another, AIR 1993 Andhra Pradesh 336 wherein it is held that whenever a registered document of adoption is produced the Court shall presume that the adoption has been made in compliance with the provisions of the Act. 12. However, keeping in view the decision of this Court, the document Ex.P4 is to be considered to determine as to whether it raises the presumption by satisfying the requirements. The suggestion made to PW1 that the original adoption deed was produced and taken back but had not been produced again and the explanation of the witness that it has been deposited with the bank and a certified copy obtained from the office of the Sub-Registrar is marked in evidence coupled with the fact that the Court has not called for production of the original at any later stage would satisfy the requirement of law both under the Evidence Act and also the requirement to produce the registered document to satisfy the first condition to raise the presumption as indicated in the decision referred supra. A photocopy of the registered document is also produced before this Court along with the memo at the time of hearing. The document indicates that that Sri. Shivappa and Smt. Karibasamma, the biological parents of the plaintiff who was given in adoption have affixed the signature and thumb mark respectively, to the document and also for the purpose of registration, which satisfies the second condition. Further the document indicates the thumb mark of Sri. Nanjappa who has taken the plaintiff in adoption which fulfills the third condition to raise the presumption. Though the signature/thumb mark has not been separately marked, in the cross examination except for generally disputing the document, the signature has not been disputed. 13. The learned counsel for the defendants however contended that the consent of the adoptive mother is not indicated as she is not a signatory to the document nor is there any other material to indicate that she had consented. The decision in the case of Ghisalal vs. Dhapubai (Dead) by LRs. and others, 2011 (1) AIR Kar R 801 (SC) wherein it is held that when there is no active participation by wife, her consent to adoption cannot be presumed is relied. The decision in the case of Ghisalal vs. Dhapubai (Dead) by LRs. and others, 2011 (1) AIR Kar R 801 (SC) wherein it is held that when there is no active participation by wife, her consent to adoption cannot be presumed is relied. It is held therein that in the absence of consent, adoption by husband would be invalid. The said decision is not of assistance herein since the requirement for obtaining consent is only that of a living spouse. In the instant case, a perusal of the cross examination of PW1, as well as PW2 would disclose that they have categorically stated the wife of Nanjappa was not alive at time of adoption. The said statement is not suggested to be false nor is there any other material to suggest that she was alive. In that view, all the three prerequisites to raise the presumption would stand satisfied. 14. Further, a perusal of the contents of ExP4 would disclose the recital as herein: The above extracted portion unequivocally records the giving and taking as required in law. When in that circumstance the document itself records that fact and if the provisions contained in Sections 91 and 92 of the Evidence Act is kept in view and the oral evidence of the parties is taken note, the manner of appreciation as made by the trial Court taking the evidence in entirety and as contained in the document is justified, rather than the manner in which Lower Appellate Court has picked out stray sentences from the cross examination to come to the conclusion that the ceremonies have not been performed and that as such there is no handing over and taking over, which in my opinion is not justified. The extracted portion of the cross examination noticed in the judgment of the Lower Appellate Court can only be to the effect that no function was held and such stray sentence cannot amount to disproving that actual handing and taking over did not take place as against the contents of the deed. 15. It is no doubt true, in the recital of the adoption deed it is stated that Shekarappa, aged fifteen years is taken in adoption. The learned counsel for the defendant therefore sought to contend that the adoption is not in accordance with law as it violates the requirement of Section 10(iv) of HAM Act. 15. It is no doubt true, in the recital of the adoption deed it is stated that Shekarappa, aged fifteen years is taken in adoption. The learned counsel for the defendant therefore sought to contend that the adoption is not in accordance with law as it violates the requirement of Section 10(iv) of HAM Act. While taking note of such contention what is also to be kept in view is that the parties are rustic villagers and the manner in which the age has been referred is also to be noted. The age has not been mentioned with any specific reference to the date of birth. In that light if the matter is considered, there is nothing on record to indicate that the plaintiff in fact was more than fifteen years of age as on the date of adoption. The plaintiff who was examined as PW5 has stated in his evidence that he was thirteen years old at the time of his adoption which has been reiterated in his cross-examination and there is no suggestion to the effect that it is false. Thus taking into consideration the entire evidence on record in the background of the adoption deed at Ex P4 which was made at an undisputed point in time and was also registered in accordance with law, the adoption as claimed by the plaintiff will stand proved. Further, when the deed has raised a presumption with regard to its validity and the defendant who is a stranger to the family is questioning the same, the defendant was required to disprove the same as contemplated under Section 16 of HAM Act. The defendants on the other hand have not chosen to tender any evidence. In view of the above, the Lower Appellate Court was not justified in holding point No. 1 in the negative. 16. The defence that was raised is also that the suit is bad for non-joinder of necessary party. The trial Court had held the same in the negative and decreed the suit without effecting the right of the other legal representatives of Late Nanjappa. The Lower Appellate Court has however held the same against the plaintiff. The fact that Late Nanjappa has two daughters cannot be in dispute. It is in that view the defendants contend that they also ought to have been arrayed as parties to the suit when partition was sought. The Lower Appellate Court has however held the same against the plaintiff. The fact that Late Nanjappa has two daughters cannot be in dispute. It is in that view the defendants contend that they also ought to have been arrayed as parties to the suit when partition was sought. The learned counsel for the defendants has relied on the judgment of the Hon’ble Supreme Court in the case of Kenchegowda (since deceased) by LRs. vs. Siddegowda alias Motegowda, (1994) 4 SCC 294 wherein it is held that the suit for partial partition, when all the joint family properties are not made the subject matter of the suit nor the cosharers impleaded is not maintainable. Having perused the same, I find that the said decision was rendered in a different set of facts, wherein the defendants case that it was joint family property as against the case of the plaintiff seeking for declaration as absolute property was accepted. The said case will not be of assistance herein. The plaintiff and the defendants herein are not members of the joint family nor is the plaintiff seeking a share in the joint family property inter se between the family members. The joinder of parties to the suit would depend on the relief that is sought, the cause of action stated for the same and the case that is pleaded for seeking the relief. If this is kept in perspective, the case pleaded herein is that the plaintiff being the adopted son of late Nanjappa was cultivating the property to which Nanjappa had right, title and interest under the sale deed dated 23.07.1962. But, when the defendant No.2 claiming right under the gift deed dated 17.05.2001 began to interfere during June 2001, the cause of action arose for the plaintiff to assert the right in respect of one half of the property which belonged to Late Nanjappa, his adoptive father. It is in that view, partition and separate possession of one half of the property has been sought on holding the gift deed as not binding. Hence in that background, the non impleadment of the daughters of Late Nanjappa to the present suit would not be fatal. It is in that view, partition and separate possession of one half of the property has been sought on holding the gift deed as not binding. Hence in that background, the non impleadment of the daughters of Late Nanjappa to the present suit would not be fatal. If the plaintiff herein succeeds in his assertion, the property which is the subject matter of the suit would enure to his benefit until any of the family members of Late Nanjappa lay claim to the property and the inter se rights if any amongst family members would be decided therein. Therefore, even on this issue, the trial Court was justified. 17. Insofar as the sale deed under which the suit schedule property was purchased, the fact that the names of Kallappa and Nanjappa are shown as the joint purchasers is evident. The document is produced as Ex.P3. When that is the position and the defendants on the other hand had contended that despite the same the entire sale consideration was paid by Kallappa and the original document was retained with Nanjappa as Kallappa was illiterate and not worldly wise, there ought to have been evidence produced before the Court in that regard. As already noticed, the defendants have not tendered evidence. In that situation, if the contents of the sale deed are kept in view, Section 45 of the Transfer of Property Act would provide the answer that such joint purchasers shall be presumed to be equally interested in the property. If that be so, one half of the property to which Late Nanjappa had interest could not have been included in the gift deed dated 17.05.2001. On that issue also the Lower Appellate Court has erred, while the trial Court was justified. 18. Hence, for all the aforestated reasons, the substantial question of law raised is answered in favour of the appellant. 19. Accordingly, I pass the following : ORDER (i) The judgment dated 23.11.2010 of the Lower Appellate Court passed in R.A.No.09/2007 is set aside. (ii) The judgment dated 11.12.2006 of the trial Court passed in O.S.No.06/2002 is restored, sustained and the suit shall stand decreed in terms thereof. (iii) The appeal is allowed in terms of the above. (iv) In the facts and circumstances, the parties to bear their own costs.