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2023 DIGILAW 1065 (KAR)

Vasudev Narayan Naik v. Mahadev Hammanna Naik

2023-09-07

ANANT RAMANATH HEGDE

body2023
JUDGMENT 1. This appeal is by first defendant in O.S.No.37/1981 on the file of the Munsiff, Ankola, challenging the divergent finding recorded by the First Appellate Court. 2. The plaintiff has sought for partition and separate possession of 6/10th share in the suit schedule properties and sought a declaration that the defendant No.1 is not the adopted son of the deceased Vasu. The First Appellate Court has allowed the appeal and consequently, granted the relief of declaration as well as the partition. 3. This appeal was admitted on 20/3/2014, to answer the following substantial question of law: "i) Whether the first appellate Court has committed a serious error in ignoring the material evidence in order to come to the conclusion that the adoption of defendant No.1 is not proved in accordance with law? ii) Whether the judgment and decree of the first appellate Court is perverse and illegal for not considering the material evidence placed on record?" 4. Certain facts necessary to answer the aforementioned substantial questions of law can be summerised as under:- 5. The genealogy of the parties is under: 6. One Venkanna was the propositus. He had two sons Hammanna and Vasu. The elder son Hammanna died in the year 1939. Vasu died in the year 1975. Hammanna had two children, Mahadev-the first plaintiff and Sannamma-the second plaintiff. According to the plaintiffs, Vasu died issueless and after the death of Vasu a dispute arose as first defendant claimed to be the adopted son of the deceased Vasu. Hence, the suit is filed challenging the adoption. 7. The first defendant contested the suit and claimed to be the adopted son of late Vasu under the registered deed dtd. 15/9/1970 after the demise of Vasu died on 3/10/1975 and the first defendant succeeded to the properties of Vasu as a sole adopted son of Vasu. 8. The trial Court has held that the adoption is proved and dismissed the suit. 9. Appeal is filed by plaintiff no.1. Plaintiff no.2 has died by that time. Plaintiff no.1 is said to be the sole heir of deceased plaintiff no.2. In the appeal filed by plaintiff no.1, it is held that the adoption is outcome of fraud and the suit is decreed. 10. Aggrieved by the divergent finding, the first defendant is in second appeal. 11. Plaintiff no.2 has died by that time. Plaintiff no.1 is said to be the sole heir of deceased plaintiff no.2. In the appeal filed by plaintiff no.1, it is held that the adoption is outcome of fraud and the suit is decreed. 10. Aggrieved by the divergent finding, the first defendant is in second appeal. 11. Sri Sangram Kulkarni, learned counsel appearing for the appellant raised the following contentions:- i) The adoption is duly registered, and under Sec. 16 of the Hindu Adoption and Maintenance Act, 1956 ('Act, 1956' for short) and there is a presumption in favour of adoption. The burden is on the plaintiff who disputed the adoption to prove that it is invalid. Burden is not discharged. ii) The adoption does not mandate the attestation by the witnesses. The examination of attesting witness is not necessary to prove the adoption. If at all there is any discrepancy in the evidence of attesting witness, the said discrepancy does not lead to the conclusion that the adoption is invalid. iii) Since Vasu the adoptive father had no issues, he had compelling reasons to adopt defendant No.1, and accordingly, he adopted first defendant. iv) The First Appellate Court erred in holding that the adoption ceremony is not established. After the commencement of the Act, 1956, the performance of the adoption ceremony is not a mandatory requirement. The adoption in favour the first defendant is in compliance with the requirement of the Act, 1956. 12. Sri Srinivas Naik, the learned counsel appearing for respondent No.1 raised the following contentions:- i) The adoption ceremony has not taken place and the same is not proved. ii) The adoptive father attended the school on the date of alleged adoption and there is no way he could have attended the adoption ceremony given the distance between the home and the school. iii) The attesting witnesses to the adoption have not supported the case of adoption. iv) The alleged adoption deed also reveals that the adoptive father has executed a Will in favour of the brother of the adopted son. v) The name of the natural father continued in the school records as well as in the ration card. Thus, it points to the conclusion that even if the adoption ceremony is performed, adoption is not acted upon and as such, there is no adoption in the eye of law. 13. v) The name of the natural father continued in the school records as well as in the ration card. Thus, it points to the conclusion that even if the adoption ceremony is performed, adoption is not acted upon and as such, there is no adoption in the eye of law. 13. This court has considered the contentions raised above in the light of substantial questions of law referred to above. 14. The First Appellant Court, paid much attention to the adoption ceremony. By referring to the circumstances where the adoptive father has attended the school on the date of adoption, it concluded that the adoptive father could not have attended the adoption ceremony given the distance between the residence of the adoptive father and the school. The evidence reveals that the adoptive father was working as a teacher in a school had to ride a bicycle for a long distance and thereafter, had to cross Gangavali river, on a boat, and had to return late in the evening by crossing the river on boat and cycling his way to the home. Since it is brought out in the evidence that he had attended the school on the same day of the alleged adoption, the First Appellant Court concluded that the adoption has not taken place. Also by referring to the circumstances where the name of the adopted son is shown in the school records and as the son of his natural father, and the name of adopted son though found in the ration card of the family of the adoptive father, reflected the name of the natural father, it concluded that the adoption has not taken place. 15. The Trial Court had held that the adoption is duly established. 16. The Court has to test the validity of the adoption under the provisions of the Act, 1956, as the adoption is said to have taken place on 31/10/1970. There is a marked change in the procedure for adoption prior to the codification of the Act of 1956. Before 1956, the adoption among Hindus was not codified. It was based on the custom and the tradition. In 1956, the law relating to adoption is codified and the adoption is governed by the provisions of the Act, 1956. There is a marked change in the procedure for adoption prior to the codification of the Act of 1956. Before 1956, the adoption among Hindus was not codified. It was based on the custom and the tradition. In 1956, the law relating to adoption is codified and the adoption is governed by the provisions of the Act, 1956. The Act, 1956 among other things prescribes the requisite conditions for a valid adoption and as to who are capable of giving in adoption and who are capable of taking in adoption. Sec. 11 of the Act of 1956 which deals with valid adoption. Sec. 12 deals with effect of adoption and Sec. 15 provides that once there is a valid adoption, the said adoption shall not be cancelled by the adoptive father or mother and Sec. 16 deals with presumption as to the registered documents relating to adoption. 17. On perusal of the aforementioned provisions, it is apparent that the codified law i.e. Act, 1956 does not prescribe the adoption ceremony to be mandatory. What is essential for the valid adoption is that the persons giving a child in adoption must be capable of giving the child in adoption. The persons taking the adoption must be capable of taking the child in adoption. There must be a certain age gap between the adoptive parents and the child. These conditions, in addition to what is contained Sec. 11, if followed, and if the adoption deed is registered the Court can presume that the adoption is valid. Then the burden lies on the person who disputes the adoption. 18. On re-appreciation of the evidence on record, this Court is of the view that the essential requirements of the Act, 1956, are met. 19. The First Appellant Court, accepted the challenge to the adoption, mainly on the premise that the adoption ceremony has not taken place. Since the Act of 1956 does not mandate the adoption ceremony, this court is of the view that the finding of the First Appellant Court that ceremony has not taken place by doubting the presence of the adoptive father who is shown to have attended the school on the date of adoption is not tenable in law. What is required to be noticed is the registered adoption deed in question is duly registered. What is required to be noticed is the registered adoption deed in question is duly registered. Sec. 16 of the Act of 1956 attaches certain presumption in favour of the registered adoption. The burden on the plaintiff who disputed the adoption is not established by adducing acceptable materials. Even if the plaint averments are referred it is evident that the plaintiffs are contending that the adoption is outcome of fraud and misrepresentation. The requirement of Order VI Rule 4 of Code of Civil Procedure is clear. Whenever a person alleges fraud, misrepresentation, coercion or undue influence, necessary particulars relating to such acts alleged must be provided in the plaint. This provision of Order VI Rule 4 is an exception to the general principle that the pleading should be brief and precise. 20. On perusal of the plaint averments, it is apparent that requisite pleadings relating to the alleged fraud, misrepresentation, undue influence are not forthcoming. 21. Though it is true that the name of the natural father continued in the school records of the adopted son, and the name of the natural father reflected in the ration card of the adoptive father, it is proved that the adoptive mother moved an application to the school authorities to delete the name of the natural father in the school records and to incorporate the adoptive father's name. Merely because the adopted child's natural father's name continued on account of inaction of school authorities, it does not lead to the conclusion that the adoption is not acted upon especially in a situation where the adoption is registered. Merel, because the name of the adopted son's natural father's name is found in the ration card issued in the name of the adoptive father, it cannot be concluded that the adoption is invalid. On the other hand, the name of the adopted son appearing in the ration card of the adopted father, points to the probability of the adoption. 22. This Court has to take into consideration the following relevant facts and circumstances that would lead to the conclusion that the adoptive father had every reason to adopt a child, namely; (a) The adoptive father did not have any issues. His wife had died long back. He was staying alone and later he migrated to the house of the natural parents of the adopted son. His wife had died long back. He was staying alone and later he migrated to the house of the natural parents of the adopted son. (b) The natural parents of the adopted son are the relatives of the adoptive father through his wife and there was already a partition between the adoptive father and his brother way back in the year 1939. (c) The adoptive father died 5 years after the adoption and he has not raised any objection relating to the registration of adoption deed. 23. For the reasons assigned, this Court is of the view that the substantial question of law referred to above has to be answered in favour of the appellant and against the respondents. The finding of the First Appellate Court that the adoption is not a valid adoption is not supported by any evidence and provisions of law. The emphasis on the adoption ceremony by the First Appellate Court was fully unwarranted given the requirement of the valid adoption under the Act of 1956. 24. Hence the following. 25. The impugned judgment and decree dtd. 21/1/2010 passed by the First Appellant Court in R.A.No.334/2006 are set aside and the judgment and decree dtd. 20/10/1989 in O.S.No.37/1981 on the file of the Munsiff, Ankola, are restored. 26. Appeal is allowed.