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2020 DIGILAW 610 (KAR)

Maruti A/F Laxman Patil v. Masanu Krishna Patil

2020-03-03

NATARAJ RANGASWAMY

body2020
JUDGMENT : NATARAJ RANGASWAMY, J. 1. This Regular Second Appeal is filed by the defendant No. 1 in O.S. No. 641/1997 challenging the concurrent Judgment and Decree dated 14.06.2004 passed by the Civil Judge (Jr. Dn.) and JMFC, Sankeshwar and the Judgment and Decree dated 23.03.2006 passed by the Civil Judge Senior Civil, Hukkeri in R.A. No. 34/2004. 2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. 3. The plaint filed in O.S. No. 641/1997 disclosed the genealogy of the plaintiff and the defendant No. 1 which is as below:- Subba Rao Parashuram (D.4) Marappa Bhagubai (Wife) Laxman Ranubai (Wife) Bhagoji Rukmabai (Wife) Krishna Ranaba Chandrabai (Wife) (died issueless) Maruti (D.1) (Adopted S/o Laxman & Ranubai) Maruti Mahadev Masanu (Plaintiff) Bhimarao (D.6) Shankar (D.5) Peeraji (D.7) Balu (D.2) Vithoba (D.3) 4. It is stated that the plaintiff and defendant Nos. 5, 6 and 7 are brothers and they had partitioned their estate. 5. It is stated that Sri. Laxman who is the paternal uncle of the plaintiff died on 11.11.1968 without leaving any children and that the said Sri. Laxman sold the suit properties to the plaintiff for a sum of Rs. 1,000/- and executed a deed of absolute sale dated 19.03.1964 (Ex.P14). The plaintiff claimed that he was put in possession of the suit schedule properties. He also stated that corresponding entries were made in the revenue records evidencing the name of the plaintiff. He claimed that the defendant No. 1 had no manner of right, title or interest. None the less, the defendant No. 1 in collusion with the Revenue Officials had got his name entered in revenue records claiming to be the adopted son of Sri. Laxman. The plaintiff contended that he challenged the unilateral change of the revenue entries to the name of the defendant No. 1 before the Assistant Commissioner in RTS Appeal No. 149/1995 which was rejected. He therefore, filed the suit for a declaration of his title and for perpetual injunction in respect of the suit schedule properties. 6. The defendant No. 1 filed his written statement disputing the execution of the sale-deed dated 19.03.1964 by Laxman in favour of the plaintiff and also disputed that the plaintiff was the owner in possession and enjoyment of the suit properties. 6. The defendant No. 1 filed his written statement disputing the execution of the sale-deed dated 19.03.1964 by Laxman in favour of the plaintiff and also disputed that the plaintiff was the owner in possession and enjoyment of the suit properties. He also disputed the revenue entries made pursuant to the report of the village accountant in diary No. 5154 recommending the name of the plaintiff to be entered in the revenue records. He disputed the other plaint averments and contended that Laxman took the defendant No. 1 in adoption on 05.12.1961 (Ex.D1). He contended that Laxman died on 11.11.1968 and therefore, the question of executing the sale-deed in favour of the plaintiff on 19.03.1964 did not arise. He also contended that Laxman did not have the absolute right to sell the suit properties since the defendant No. 1 was already adopted and therefore, the defendant No. 1 possessed an undivided right, title and interest in the suit properties. He further contended that the wife of Laxman died in the year 1981 and during her lifetime, she was in possession and enjoyment of the suit schedule properties and after her death, defendant No. 1 was in possession of the suit schedule properties. He also disputed the claim of the plaintiff that the plaintiff was taking care of the deceased Laxman during his life time. He also contended that the suit properties were valued at a sum of Rs. 1,00,000/- and therefore, the Trial Court did not have jurisdiction to try the suit. With these contentions the defendant No. 1 sought for dismissal of the suit. 7. Based on the aforesaid rival contentions the Trial Court framed the following issues: “1. Whether the plaintiff proves that he is the owner of the joint share in the suit properties through valid registered sale-deed dated 19.03.1964? 2. Whether the plaintiff proves lawful possession over suit properties? 3. Whether the Defendant no. 1 proves that he is adopted son of deceased Laxman Subrao Patil? 4. Whether the Defendant no. 1 proves that the deceased Laxman above could not have sold the suit properties? 5. Whether the plaintiff proves obstruction by the defendants? 6. Whether the suit is barred by time? 7. Whether the valuation of suit properties is not correct and as such this court has no jurisdiction? 8. To what relief the parties are entitled for? 9. What decree or order?” 8. 5. Whether the plaintiff proves obstruction by the defendants? 6. Whether the suit is barred by time? 7. Whether the valuation of suit properties is not correct and as such this court has no jurisdiction? 8. To what relief the parties are entitled for? 9. What decree or order?” 8. The plaintiff was examined as PW-1 and he marked Exs.P1 to P41, while the defendant No. 1 was examined as DW-1 and three other witnesses were examined as DWs. 2, 3 and 4 and they marked Exs.D1 to D12. 9. The Trial Court considered the rival pleadings, oral and documentary evidence and relying upon the sale-deed dated 19.03.1964 held that the plaintiff had proved his title to the suit properties. In so far as the adoption of the defendant No. 1 is concerned, the Trial Court held that the execution of the deed of adoption was not proved. The Trial Court also noticed that the defendant No. 1 had claimed that he was aged 19 years at the time of adoption and thus, the Trial Court held that under Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956, the adoption was invalid. The Trial Court noticed that there was no pleading nor proof regarding the existence of any custom that permitted the adoption of the child who was aged more than 15 years. The Trial Court further considered the revenue documents Exs.P1 to P12, P14 to P18 and P34 to P41 and held that the plaintiff was in possession of the suit schedule properties and thus decreed the suit of the plaintiff. 10. The defendant No. 1 challenged the aforesaid Judgment and Decree of the Trial Court before the Civil Judge (Sr. Dn.) Hukkeri in R.A. No. 34/2004. The First Appellate Court secured the record of the Trial Court, heard the defendant No. 1 and the plaintiff, framed points for consideration and in terms of its Judgment and Decree dated 23.03.2006 dismissed the appeal. 11. The defendant No. 1 has therefore, challenged both the Judgments and Decrees of the Trial Court and the First Appellate Court in this Regular Second Appeal. 12. This Regular Second Appeal was admitted by this Court on 06.07.2012 and the substantial question of law was framed which is as follows: “1. 11. The defendant No. 1 has therefore, challenged both the Judgments and Decrees of the Trial Court and the First Appellate Court in this Regular Second Appeal. 12. This Regular Second Appeal was admitted by this Court on 06.07.2012 and the substantial question of law was framed which is as follows: “1. Whether the courts below were justified in law in holding that the appellant/defendant is not the adopted son of Laxman Patil and his wife Ranubai on the ground that the appellant was 19 years old on the date of adoption, though the appellant/defendant in his written statement contended that there is a custom in the area of old Bombay State to take child above 15 years age and even the same is permissible in law, in the light of the decision of the Apex Court in Kondiba Rama Papal @ Shirke (Dead) by his heirs and LRs. and Another vs. Narayana Kondiba Papal, AIR 1991 SC 1180 ? 2. Whether the courts below were justified in holding that the plaintiff has acquired ownership right over the suit lands as per the alleged sale-deed dated 19.3.1964, though Laxman Patil has no right to sell the said lands?” 13. I have heard the defendant No. 1, plaintiff, perused the Lower Court Records, the Judgment and Decrees of the Trial Court and the First Appellate Court and also the grounds of appeal urged in the memorandum of appeal. 14. A perusal of the pleadings of the parties would disclose that Laxman was the owner of the suit schedule properties. Though the plaintiff claimed that the suit properties were the absolute properties of Laxman, the defendant No. 1 did not dispute this and did not contend that the suit properties were joint family ancestral properties. However, it is not in dispute that the suit properties were held by Laxman as its owner. It is seen from the documentary evidence at Ex.P14 that the suit properties were sold by Laxman to the plaintiff in terms of a deed of absolute sale dated 19.03.1964 which was registered on 16.04.1964. Ex.P1 is the RTC in respect of Sy. No. 68 for the year 1996-97 which discloses the name of the defendant No. 1 in column No. 9 and for the same year in Ex.P2 the name of the defendant No. 1, his cousin brothers (Balu defendant No. 2, Vithoba-defendant No. 3) was found. Ex.P1 is the RTC in respect of Sy. No. 68 for the year 1996-97 which discloses the name of the defendant No. 1 in column No. 9 and for the same year in Ex.P2 the name of the defendant No. 1, his cousin brothers (Balu defendant No. 2, Vithoba-defendant No. 3) was found. In terms of Ex.P3 which is in respect of Sy. No. 72, the name of the defendant No. 1, plaintiff and his brothers are found. Similarly, in terms of Exs.P4 and P5 the same is continued. In terms of Ex.P6 which is in respect of Sy. No. 92/1A, the name of the defendant No. 1 and his cousin brothers is found. In terms of Exs.P7 and P8 which are in respect of Sy. No. 102/A, the name of the defendant No. 1 is found along with his cousin brothers. In terms of Exs.P9 and P10, the name of the defendant No. 1, his cousin brothers and the name of the plaintiff is found. While, as per Ex.P11 which is in respect of Sy. No. 118, the name of the defendant No. 1 is found. Similarly, in terms of Ex.P12 which is in respect of Sy. No. 121/7E, the name of the defendant No. 1 is found. 15. In terms of Ex.P13, the name of the plaintiff was entered in the revenue records pursuant to the acceptance of mutation proceedings dated 27.06.1964. 16. Ex.P15 is the notice issued by the Assistant Commissioner in an appeal filed in RTS Appeal No. 145/1995. While Ex.P16 is an order passed by the Assistant Commissioner directing the parties to approach the Civil Court. 17. Ex.P17 is a certified copy of the sale-deed, the original of which was marked as Ex.P14 and Ex.P17A is the translation. 18. Exs.P18 to P23 and P27 are the RTC of Sy. Nos. 15/2, 15/4, 19/19, 20/3, 20/6, 45/17. These documents disclose that at Column No. 9, Laxman derived 1/5th share in all these properties. Curiously, in terms of Exs.P24, the name of the plaintiff is shown in Column No. 9 as entitled to 1/4th share. However, in Ex.P26, the name of the defendant No. 1 appears, while the name of the plaintiff does not appear. Again in terms of Ex.P28, the name of the plaintiff and the defendant No. 1 is found and their predecessors are shown to be entitled to 1/4th share. However, in Ex.P26, the name of the defendant No. 1 appears, while the name of the plaintiff does not appear. Again in terms of Ex.P28, the name of the plaintiff and the defendant No. 1 is found and their predecessors are shown to be entitled to 1/4th share. Likewise in Ex.P29, name of plaintiff is shown as being entitled to 1/4th share. In so far as Exs.P30 and 31, the name of Patil Krishna Bhagoji is found in respect of Sy. Nos. 110/11 and 110/12. As per Ex.P32, the name of Sri. Patil Laxman Subba Rao is found in respect of Sy. Nos. 118/2B and 121/7P. Exs.P34 to P41 are the receipts for having paid the land revenue. 19. On the other hand, Ex.D1(a) is the translated copy of the deed of adoption (Ex.D1) dated 25.12.1961, wherein it is mentioned as follows: xxx xxx xxx 20. Ex.D2 is the mutation register extract and Ex.D3 is the Hissa Register extract of the suit schedule properties. Exs.D4 to D12 are the receipts for having paid the land revenue. 21. The evidence of PW-1 which is relevant for the purpose of deciding this appeal is extracted below: xxx xxx xxx 22. The evidence of DW-1 that is relevant for the purpose of deciding this appeal is extracted below: “All the four brothers of Laxman were residing separately about 40 years back. Apart from the suit land said Laxman was owning other lands situated at Shetty Halli. The said Laksman was issue less, so he adopted me and I became the adopted son. The said adoption took place in theyear 1961 in the presence of Rannu Bai along with Laxman. My father Bagoji and natural mother Rukma Bai gave me in adoption to Laxman and his wife. At the time of adoption I was 19 years old. It was on Tuesday. At the time of adoption ceremony myself and one priest and several relatives and community men were present.” 23. He also stated that: “That after adoption I stated residing in adopted parents house. At that time our family was consisting of myself and my adopted parents. I also became the share holder in the adopted family and we jointly stated cultivating the suit land and enjoying the property.” 24. He also stated: “My adoptive father has no right also to sell those 15 properties.” 25. At that time our family was consisting of myself and my adopted parents. I also became the share holder in the adopted family and we jointly stated cultivating the suit land and enjoying the property.” 24. He also stated: “My adoptive father has no right also to sell those 15 properties.” 25. In his cross-examination DW-1 stated as follows: “It is true that my father was having 2 acres of land. Myself and my brother have shared the same to the extent of 1 acre each. It is true that myself and my brother are residing in our respective houses built by us. About 20 years back myself and my brother got divided our house property. It is true that the old house belonging to my father is vacant but I used to make vahivat. It is true that we have constructed a new house after partition with my brother Mahadev Laxman died in the year 1968. It is true that the name of the plaintiff is existing in the revenue records of the sold property, but I do not know anything about it. It is true that I did not show the adoption deed to anybody till 1995.” 26. DW-2 was the son of the scribe of Ex-D1 who identified the signatures of his father and also his handwriting. The evidence of DW-2 is not shaken. 27. DW-3 is the defendant No. 2 in the suit. He stated that he had participated in the adoption ceremony. He stated in his cross-examination: “The name of one Masanu Patil, plaintiff is existing in the revenue records of the suit properties after the death of Krishna Patil till today.” 28. He stated: “It is true that defendant No. 1 and his brother Madhu are cultivating their equal portion of land to the extent of 1 acre each belonging to their father.” 29. He stated that he had affixed his thumb impression to the adoption deed and that adoption took place in Hukkeri and only adoption function was arranged in Shettihalli. He stated that a day prior to execution of adoption deed, the function had taken place in Shettihalli. He also stated “it is true that myself and plaintiff are not in talking terms since 7 to 8 years.” 30. He stated that a day prior to execution of adoption deed, the function had taken place in Shettihalli. He also stated “it is true that myself and plaintiff are not in talking terms since 7 to 8 years.” 30. DW-4 then aged 55 as on 28.11.2003 stated that defendant No. 1 was the adopted son of Laxman Patil and that the adoption took place 40 years back. In his cross-examination he stated as follows: “The said adoption took place about 40 years back on one Tuesday in the house of Laxman Patil. In all 6 persons were present in adoption function namely Bavukanna Patil, Bharma Patil, Laxma Patil. These are the only person who were present at the time of adoption function. The said function started about 9.00 a.m. in the morning and ended at about 12.00 Noon.” 31. He also stated that the relationship between the defendant No. 1, his brother Balu Patil and the plaintiff were strained. 32. What is evident from the aforesaid facts are that Laxman Patil and his brothers had divided the ancestral properties and Laxman Patil had derived his 1/5th share. He had sold his undivided interest in 15 items of the properties in favour of the plaintiff of which 12 items were the suit schedule properties. It is seen from the plaint averments that apart from the suit schedule properties, there were other properties owned by Laxman. 33. What needs to be decided in the present case are: “(i) Whether the properties in question were ancestral properties in the hand of Laxman? (ii) Whether the defendant No. 1 had proved the lawful execution of Ex.D1? (iii) Whether there was any custom in Bombay Karnataka area that permitted adoption of a boy aged more than 15 years? (iv) Whether Laxman and the defendant No. 1 as an aurasa son, constituted a coparcenary? (v) Whether Laxman could have solely sold the entire properties that he held? (vi) Whether the plaintiff is entitled to any relief?” 34. In order to answer the aforesaid questions, the averments made in the plaint, the written statement and the evidence led by the parties, if pieced together, would indicate that Laxman possessed 1/5th share suit properties and that he had separated from his family by the time the adoption deed at Ex.D1 was entered into. Ex.D1 was entered into on 05.12.1961. In order to answer the aforesaid questions, the averments made in the plaint, the written statement and the evidence led by the parties, if pieced together, would indicate that Laxman possessed 1/5th share suit properties and that he had separated from his family by the time the adoption deed at Ex.D1 was entered into. Ex.D1 was entered into on 05.12.1961. If Ex.D1 is held to be validly executed and if the adoption is held to be valid, then it is to be affirmatively held that a coparcenary was created as this is the intent of Section 12 of the Hindu Adoptions and Maintenance Act, 1956. As a matter of fact, under Ex.D1 Laxman had represented to the parents of the defendant No. 1 as follows: xxx xxx xxx 35. Section 16 of the Hindu Adoption and Maintenance Act, 1956 presumes that an adoption is valid if it is evidenced by a registered instrument and reads as follows: “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.” 36. In the present case, the plaintiff has not disputed or denied the signatures of Laxman found on Ex.D1. Though, Ex.D1 is claimed to be a fabricated document, no attempts are made for verification of the signatures of Laxman and this could have been easily done by comparing the signatures of Laxman on Ex.D1 and Ex.P14. Thus it can safely be held that the signatures found on Ex.D1 is the signature of Laxman and since the document in question is duly registered the presumption available under Section 16 has to be drawn. An attempt was made by contradicting the version of DW-3 who had affixed his thumb impression as a witness to Ex.D1. The only statement that was extracted from DW-3 was that the plaintiff and DW-3 were not on good terms. However, this statement cannot efface the other categorical evidence of DW-3 wherein he stated that he was present at the time of adoption ceremony. The only statement that was extracted from DW-3 was that the plaintiff and DW-3 were not on good terms. However, this statement cannot efface the other categorical evidence of DW-3 wherein he stated that he was present at the time of adoption ceremony. The evidence of DW-4 may not be all that credit worthy, since DW-4 was hardly 13 years at the time of the adoption. Thus, it can safely be held that Ex.D1 was proved beyond doubt by the defendant No. 1. 37. The plaintiff has asserted that the defendant No. 1 was admittedly 19 years at the time of adoption and therefore assuming Ex.D1 to be proved, yet the adoption was not valid and contravened Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956. 38. Section 10(iv) of the Act is extracted below: “10. Persons who may be adopted:- (i) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” 39. It is relevant to state that defendant No. 1 in his written statement has stated as follows: xxx xxx xxx 40. The plaintiff has not chosen to deny or dispute the following pleading in the written statement: xxx xxx xxx 41. The Hon’ble Apex Court in the case of Kondiba Rama Papal @ Shirke (Dead) by his heirs and LRs. and Another vs. Narayan Kondiba Papal, 1991 (2) SCC 218 had relied upon Mullas Hindu Law (14th Edition at Page 550) that in the Bombay State a person may be adopted at any age though he may be older than the adopter and though he may be married and had children. The adoption is not invalid although it took place after the thread ceremony of the boy was performed. Thus, the custom is judicially recognized in the Bombay State as regards adoption of a child at any age. Once the custom is judicially recognized, it is not required to be independently proved in subsequent cases. The plaintiff and defendant No. 1 belonged to the area which was part of the old Bombay State and accordingly, such a custom prevailed amongst them as regards adoption of a child at any age. Once the custom is judicially recognized, it is not required to be independently proved in subsequent cases. The plaintiff and defendant No. 1 belonged to the area which was part of the old Bombay State and accordingly, such a custom prevailed amongst them as regards adoption of a child at any age. Even independently of this position, in the old Bombay State evidence was led of two instances of adoption of persons belonging to the same caste as the plaintiff where a child was adopted at the age above 15 years after the Act came into force. 42. The parties in this case belong to Hukkeri Taluk of Belgaum District which was part of the erstwhile Bombay State and therefore, in view of the judgment of the Hon’ble Apex Court, it is not required to be independently prove that a custom existed which permitted the adoption of a person who was aged more than 15 years. Thus, the adoption in question is held to be valid not withstanding the fact that the defendant No. 1 was aged more than 15 years as on the date of adoption. 43. If the adoption was valid and if the execution of the adoption deed was proved, it goes without saying that Laxman created a coparcenary along with the defendant No. 1. The Hon’ble Apex Court in a case reported in Basavarajappa vs. Gurubasamma and Others, 2005 (12) SCC 290 held as follows: “On adoption, the appellant became a coparcener with Narasappa and entitled to his coparcenary interest in the ancestral properties held by Narasappa. The appellant became entitled to half share in the joint Hindu family of his father as a coparcener like a natural son. The view which we are taking is in consonance with the view taken by this Court in Sitabai case, in which it was held that after considering the scheme of Sections 11, 12 and 14 of the Adoption Act, that on adoption the adopted child would become a coparcener in the adopted family after severing all his ties with the family from which he has been adopted.” 44. The Apex Court in a case reported in K.V. Muthu vs. Angamuthu Ammal, AIR 1997 SC 628 observed that the term son itself is a flexible term and may not be limited to a direct descendent. The Apex Court in a case reported in K.V. Muthu vs. Angamuthu Ammal, AIR 1997 SC 628 observed that the term son itself is a flexible term and may not be limited to a direct descendent. Amongst the categories of relations who are included in the term ‘son’ where the personal law permits it includes an adopted son. 45. The Hon’ble Apex Court in yet another judgment reported in Saheb Reddy vs. Sharanappa and Others, 2017 (1) SCC 142 held that an adoption would not disturb the vested interest. In that case, the child was adopted by the wife of Sharanappa on 09.02.1971 after the death of Sharanappa in the year 1957. The Apex Court held that soon after the death of Sharanappa his wife and her three daughters were entitled to their vested share in the suit properties and therefore, the adoption of the child after such vesting would not disturb by virtue of Section 12 of the Hindu Adoption and Maintenance Act, 1956. 46. Section 13 of the Hindu Adoption and Maintenance Act, 1956 reads as follows: “13. Right of adoptive parents to dispose of their properties - Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.” 47. In view of my finding that Ex.D1 was validly executed and that there was a valid adoption, a perusal of Ex.D1 discloses: xxx xxx xxx 48. This clause makes it amply clear that the deceased Laxman had agreed to part with such extent of the property that a natural heir would have otherwise succeeded to. In view of the above, it is clear that the Trial Court and the First Appellate Court did not appreciate the facts of the case from a proper perspective and did not apply themselves to the position of law as declared by the Courts. In view of the above, the impugned Judgments and Decrees of the Trial Court and the First Appellate Court is liable to be set-aside and it is to be declared that plaintiff is entitled to half share in the suit schedule properties and the defendant No. 1 being the adopted son of Laxman is entitled to the remaining half share. 49. 49. In view of my above reasoning, I answer the substantial questions framed by this Court and hold that the Trial Court and the First Appellate Court were not justified in holding that the defendant No. 1 was not the adopted son of Laxman Patil and I also hold that the Trial Court and the First Appellate Court were not justified in holding that the plaintiff had acquired absolute right, title and interest over the suit lands pursuant to the sale-deed dated 19.03.1964 50. Since the present suit is filed for declaration and injunction and as the plaintiff and the defendant No. 1 have understood their cases and as both the plaintiff and the defendant No. 1 have proved the lawful execution of Ex.P14 and Ex.D1, they are deemed to be joint owners of the suit schedule properties and in order to do substantial and complete justice between them by moulding the reliefs, a preliminary decree of partition is hereby passed declaring that the plaintiff and the defendant No. 1 are entitled to half share in the suit schedule properties. 51. The plaintiff who was placed in possession of the suit schedule properties under Ex.P14 shall continue in possession of the suit schedule properties until the share of the defendant No. 1 is properly demarcated in final decree proceedings. 52. This Regular Second Appeal is allowed in part. It is declared that the defendant No. 1 is the adopted son of Sri. Laxman Patil in terms of Ex.D1. It is declared that the defendant No. 1 being the adopted son of Sri. Laxman Patil, is entitled to half share in the suit properties, while the other half share in the suit properties shall be allotted to the share of the plaintiff who has purchased the suit properties from Sri. Laxman Patil in terms of Ex.P14. 53. The Office is directed to draw a preliminary decree of partition declaring that the plaintiff and defendant No. 1 are entitled to half share each in the suit schedule properties. Parties are at liberty to initiate final decree proceedings for demarcation of their respective shares.