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2023 DIGILAW 1196 (KAR)

Chandamma W/o. Shankrappa Chalgeri v. Channaveer Alleged, S/o. Anandraya Hadagil @ Narayanapur

2023-10-10

K.S.HEMALEKHA

body2023
JUDGMENT : The present regular second appeal by the legal representatives of the defendant assailing the judgment and decree of the appellate Court in reversing the judgment and decree of the trial Court, holding that the plaintiff, is the adopted son of deceased Neelamma w/o Anandraya Hadagil, the absolute owner in exclusive possession of the suit schedule property and the partition in favour of defendant is declared as null and void, not binding on the plaintiff. 2. This Court while admitting the appeal has formulated the following substantial question of law on 13.06.2016: “In the absence of any evidence as regards the giving and taking of the adoption, whether the Court below could have accepted the adoption deed?” 3. Sri Vinayak Apte, learned counsel for the appellants and Sri Ameet Kumar Deshpande, learned senior counsel appearing for the respondents have been heard on the substantial question framed by this Court. 4. For the sake of convenience, the parties herein are referred to as per their ranking before the trial Court. 5. The undisputed facts are that: (i) Neelamma filed Form No.7 before the Land Tribunal, Aland, the occupancy rights was granted on 25.04.1981 in favour of Neelamma and the name of Neelamma was entered in the revenue records as per Form No.10. (ii) Neelamma adopted the plaintiff-Channaveera on 04.11.2005 and the registered adoption deed was executed on 29.12.2005. (iii) Neelamma adoptive mother of the plaintiff and defendant are sisters born to one Revappa Shivappa Hadagil. (iv) Genealogy referred in the plaint is not disputed by the defendant. (v) Several revenue proceedings were initiated by the defendant and Neelamma in respect of the suit schedule property. 6. The trial Court based on the pleadings framed the following: “ISSUES 1. Whether plaintiff proves that, he is the absolute owner, in possession of the suit schedule properties? 2. Whether the plaintiff proves that, he is the adopted son to the deceased Neelamma W/o. Anandraya? 3. Whether defendant proves that, she is the absolute owner of the suit schedule properties? 4. Whether plaintiff is entitled the relief of declaration and permanent injunction as prayed for?” 7. The trial Court taking into consideration the oral and documentary evidence, dismissed the suit of the plaintiff. 8. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiff preferred appeal before the first appellate Court. 4. Whether plaintiff is entitled the relief of declaration and permanent injunction as prayed for?” 7. The trial Court taking into consideration the oral and documentary evidence, dismissed the suit of the plaintiff. 8. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiff preferred appeal before the first appellate Court. The first appellate Court reappreciated the entire oral and documentary evidence independently and reversed the findings of the trial Court, holding that: i) The plaintiff is declared as the adoptive son of Neelamma; ii) Plaintiff is declared as the absolute owner in exclusive possession of the suit schedule property; iii) The partition deed as contended by the defendant is declared as null and void and not binding on the plaintiff; iv) Directed the Revenue Authorities to delete the name of the defendant appearing in the revenue records in respect of Sy. No.190/A to the extent of 5 acres 24 guntas; v) Defendant or any person claiming through her were restrained perpetually from interfering into the suit land in any manner. 9. Defendant-Chandamma, being aggrieved by the reasoning of the first appellate Court in reversing the finding of the trial Court, has approached this Court in the second appeal. 10. Learned counsel appearing for the appellants-defendant would contend that in the absence of any material evidence of giving and taking ceremony as mandate under Section 11 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as “the HA & M Act, 1956” for the sake of convenience), the plaintiff has failed to prove the essential ingredients to validate the adoption. Learned counsel would contend that, the adoption as alleged by the plaintiff is by playing fraud on Neelamma and without her consent. He would also contend that Neelamma, during her lifetime, had partitioned the suit schedule property and an extent of 5 acres 24 guntas fell to the share of the defendant, who is the sister of Neelamma and mutation entry was duly effected. Learned counsel for the appellants would submit that the substantial question of law framed by this Court needs to be answered in favour of the appellants. 11. Learned counsel for the appellants would submit that the substantial question of law framed by this Court needs to be answered in favour of the appellants. 11. Per contra, learned senior counsel appearing for the respondent-plaintiff would contend that the physical act of giving and receiving as is mandate under Section 11 of the HA & M Act, 1956, is clearly evidenced from the pleadings at para No.10 and the evidence of the witnesses at PWs.2 to 4. Learned senior counsel further contends that the adoption of the plaintiff is by a registered document and the presumption under law is that, the Court shall presume the adoption was in compliance with the provisions of the HA & M Act, 1956 and it is a valid adoption. Further, he would contend that the first appellate Court being the last fact finding Court has reappreciated the entire evidence and has rightly arrived at a conclusion that Ex.P44adoption deed registered on 29.12.2005 is executed by deceased Neelamma. Learned senior counsel would contend that the defendant-Chandamma, who is the sister of Neelamma adoptive mother of the plaintiff, had no locus standi to question the status of the plaintiff. In support of his contention, learned senior counsel has placed reliance upon the decision of the Coordinate Bench of this Court in the case of Veerabhadrayya R.Hiremath (D) by L.Rs. vs. Irayya A.F. Basayya Hiremath, 2006 A I H C 1734 and in the case of Kadappa Satyappa Terani vs. Siddappa Khandappa Terani & others, RSA.NO. 1483/2005 decided on 02.09.2022. 12. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the judgment and decree of the Courts below including the original records. 13. The family pedigree of the plaintiff and defendant is as under: REVAPPA S/O SHIVAPPA HADAGIL (Exp. On 9.11.1987) (Wife Gurubasava Expired) 14. The plaintiff in order to substantiate his claim has examined his guardian as PW.1 and three witnesses as PWs.2 to 4 and got marked documents at Exs.P1 to P46. On the other hand, defendant did not examine herself, however, on her behalf three witnesses were examined as DWs.1 to 3 and got marked documents at Exs.D1 to D13. 15. The defendant takes a stand that the adoption deed was executed by playing fraud on Neelamma. On the other hand, defendant did not examine herself, however, on her behalf three witnesses were examined as DWs.1 to 3 and got marked documents at Exs.D1 to D13. 15. The defendant takes a stand that the adoption deed was executed by playing fraud on Neelamma. The defendant, other than merely stating fraud in the written statement, has not given particulars regarding the plea of fraud, misrepresentation as envisaged under Order VI Rule 4 CPC. It is settled principles of law that any allegations as to fraud, intimidation, illegality, misrepresentation needs to be specifically pleaded. The written statement averments lack material particulars regarding “fraud” as contended by the defendant, in the absence of the same, any amount of evidence is impermissible. The defendant has thus failed to establish that the adoption by Neelamma was on account of misrepresentation or by fraud. 16. The other line of contention of defendant is that, there was a partition between Neelamma and defendant, wherein, 5 acres 24 guntas in respect of the suit schedule property was partitioned in favour of the defendant by Neelamma. The material on record also evidences that the mutation entry appears to have been effected in the name of the defendant to the extent of 5 acres 24 guntas, which was challenged by Neelamma during her life time before the concerned authority, which ultimately could not be concluded since Neelamma died during the pendency of the proceedings. It is settled proposition of law that mere entry in the revenue records would not create any right in respect of the immovable property, in the absence of any registered document. The evidence of the defendant would not establish the partition as alleged in the written statement. 17. The adoption has taken place on 04.11.2005 and registered on 29.12.2005 in the office of SubRegistrar, Gulbarga as per Ex.P44. The attesting witnesses to Ex.P44 are ParameshwarPW.2, MohananandPW.3 and their signatures affixed on Ex.P.44, which is marked as Exs.P.44(c) and P.44(d). The witnesses have categorically deposed about the signing of the adoption deed by the adoptive mother in their presence and they have stood the test of crossexamination, nothing worthwhile could be elicited from the mouth of the witnesses to help the case of the defendant. The witnesses have categorically deposed about the signing of the adoption deed by the adoptive mother in their presence and they have stood the test of crossexamination, nothing worthwhile could be elicited from the mouth of the witnesses to help the case of the defendant. The entire material on record and conduct of the parties as well as the statutory requirement needs to be looked into while arriving at a conclusion "whether there was adoption of plaintiff under registered adoption deed dated 29.12.2005”. 18. Adoption is the admission of a stranger by birth to the privileges of a child by a legally recognized form of affiliation. The requirements of a valid adoption under the law applicable before the commencement of this HA & M Act, 1956 as to the capacity of the parties was that: i) The persons taking and giving a son in adoption must have the legal capacity and right to do so, ii) The person adopted should be lawfully capable of being taken in adoption. iii) Only a male Hindu has the right to adopt a son provided he had no son, grandson or greatgrandson, natural or adopted, living at the time of adoption. iv) A wife could adopt a son to her husband, but she could not do so during her husband's lifetime without his express consent. v) After his death she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so. vi) In other parts of India, she could adopt without such authority. vii) The physical act of giving was a prime necessity of the ceremonial requirement relating to adoption. 19. With the passing of Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession, it was only logical that the fundamental guarantee of equality of status and equality before the law should also be recognized in the matter of adoption, and concrete shape should be given to the rights of a woman to be in equali jura in this branch of law. The HA & M Act, 1956 now provides for adoptions of boys as well as girls. The law on the subject of adoption by a widow, as interpreted by Courts, had the effect of divesting certain estates already vested in others, and had been the cause of much ruinous litigation. The HA & M Act, 1956 now provides for adoptions of boys as well as girls. The law on the subject of adoption by a widow, as interpreted by Courts, had the effect of divesting certain estates already vested in others, and had been the cause of much ruinous litigation. A widow can now adopt a son or daughter to herself, in her own right, but there is no question of divesting any property vested in any person or even herself by reason simply of the fact that subsequent to such vesting, an adoption has been made. The present act has considerably simplified the law on the subject. It has also the merit of giving an uniform code on the subject for the whole of India. 20. Chapter II of the HA & M Act, 1956 codifies the law of adoption and contains a fascicules of Rules relating to the capacity and right of a male and female Hindu to take in adoption a son or daughter who must be a ‘Hindu’, an expression to be understood in the wide comprehensive meaning given to it in the HA & M Act, 1956. It also deals with the subject of persons who may give in adoption, and persons who may be taken in adoption. On principal provision of the Chapter relates to the formal and ceremonial requirements of the act of adoption. This HA & M Act, 1956 made it abundantly clear that all adoptions made after the HA & M Act, 1956 came into operation are to be regulated and governed by the provisions contained in this Chapter, and that any adoption thereafter made in contravention of any of those provisions would be null and void. 21. Adoptions made prior to the coming into force of the HA & M Act, 1956 i.e., on 21 December 1956, are not affected by the rules relating to the validity and effect of adoptions contained in the HA & M Act, 1956. Their validity and effect must be determined by the law as it stood before the said Act came into operation. Section 11 of the HA & M Act, 1956 imposes conditions for a valid adoption which reads as under: “11. Other conditions for a valid adoption. Their validity and effect must be determined by the law as it stood before the said Act came into operation. Section 11 of the HA & M Act, 1956 imposes conditions for a valid adoption which reads as under: “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 twentyone 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 twentyone 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 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 data homam shall not be essential to the validity of adoption.” 22. The requirement of valid adoption under the HA & M Act, 1956 are: (i) The person adopting must have the right to take and be lawfully capable of taking a son or daughter in adoption. (ii) The person giving in adoption must be lawfully capable of doing so. (iii) The person adopted must be lawfully capable of being taken in adoption. (iv) The conditions relating to an adoption including actual giving and taking of a child with the intention of transferring the child from the family of its birth must be complied with. 23. (ii) The person giving in adoption must be lawfully capable of doing so. (iii) The person adopted must be lawfully capable of being taken in adoption. (iv) The conditions relating to an adoption including actual giving and taking of a child with the intention of transferring the child from the family of its birth must be complied with. 23. Section 11 lays down some vital rules relating to the law of adoption and the rules and conditions stated in the section are absolute and noncompliance with any of them will render an adoption invalid. Clause (vi) of Section 11 in express terms states that there must be the actual giving and taking of the child with intent to transfer the child from the family of its birth to the family of its adoption. The physical act of giving and receiving was absolutely necessary for the validity of an adoption under the law as it existed before coming into force of the present the HA & M Act, 1956, and the position under the Act is identical and the Apex Court in the case of Jaisingh vs. Shakuntala, (2002)3 SCC 634 has categorically held that actual giving and taking is essential. It is relevant to state that this Section, however, does not prescribe any particular mode or manner for the act of giving and taking, what is essential is that there should be some overt act to signify delivery of the child from one family to another. 24. Reverting to the facts of this case, the plaintiff at para No.10 of his plaint has categorically stated about the giving and taking as per the prevailing customs and traditions and performing all the religious ceremonies for the adoption of the plaintiff-Channaveera. The relevant portion of para No.10 reads as under: “10 That, the plaintiff is none else than the grand son of Neelamma's sister Iramma [born to Suresh]. The plaintiff Channaveer since from his child hood had been living with smt. Neelamma by rendering all the services of her, who had got love and affection towards him, she had approached to his natural parents Basamma and Suresh and requested them to give Channaveera [Plaintiff] as adoption to her family. The natural parents were agreed and gave their consent. The plaintiff Channaveer since from his child hood had been living with smt. Neelamma by rendering all the services of her, who had got love and affection towards him, she had approached to his natural parents Basamma and Suresh and requested them to give Channaveera [Plaintiff] as adoption to her family. The natural parents were agreed and gave their consent. Smt Neelamma in the presence of respective persons of locality, relatives and friends, she took a son i.e, plaintiff Channaveera as the lawful adoption, after performing all the religious ceremonies including physical giving and taking as per prevailing customs, traditions and attitudes on the auspicious day of Deepavali Padya i.e,on 4.11.2005. Since from the day of adoption, the plaintiff had been living with her adoptive mother Neelamma and gets the status of her natural born son. To memories the same, it was documented through the "Adoption Deed" and registered on 29122005 vide its document No. 156/0506 in the office of SubRegistrar at Gulbarga. The certified copy of adoption deed and birth certificate of plaintiff are furnished for kind perusal and cited as Annexure E1 to E2. (Emphasis supplied) 25. The material on record clearly demonstrates that the plaintiff was adopted by Neelamma under a registered adoption deed dated 29.12.2005 as per Ex.P44 and he had severed from his genitive parents and the statutory requirement for adoption about giving and taking has been pleaded and proved by the plaintiff. The evidentiary value of the registered adoption deed has been duly proved in light of the pleadings and as spoken to by the attesting witnesses PWs.2 and 3. 26. The adoption of the plaintiff is by registered adoption deed dated 29.12.2005. The presumptive value of the registered document relating to adoption needs to be looked into, Section 16 of the HA & M Act, 1956 deals with the presumption as to the registered documents relating to adoption. The said section 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.” 27. The said Section lays down a rule of presumption which requires that where there is a duly registered document of the nature envisaged in the section, ‘the Court shall presume’ that the adoption was in compliance with the provisions of the HA & M Act, 1956, ‘unless and until it is disproved’. The factum of adoption must be proved in the same manner as any other fact, and there are no special rules of evidence to establish an adoption. Evidence in support of an adoption must be sufficient to satisfy the heavy burden that rests upon any person who seeks to displace the natural succession by alleging an adoption. It is not unusual to have a registered document duly executed, by the person taking in adoption, and the person giving in adoption. The said section envisages to hold that the presumption could operate as long as it is not challenged, or it is not rebutted by a procedure known to law. 28. There is presumption about the validity of an adoption when the adoption deed is registered, and in such circumstances, the adoption is in conformity with the act as held by the Apex Court in the case of Saroja vs. Senthil Kumar, (2011)11 SCC 483 . 29. The question next would be, whether the sister of Neelamma had any locus standi to question the adoption, more particularly in a collateral proceedings? The defendant is none other than the sister of Neelamma who by filing written statement sought to dispute the validity of adoption making an allegation of fraud. The suit is by the adoptive son seeking for declaration that he is the adoptive son of Neelamma and invariably the defendant tries to dispute the same, which is not permissible in law. 30. The words “unless and until it is disproved” appearing at the end of the section makes out that the presumption which would be made under this Section would be rebuttable as held in Jaisingh's case stated supra, however, the burden of proving that the adoption deed was executed in consequence of fraud or undue influence, rests heavily on the party challenging the same and such document can be challenged in separate and not collateral proceedings. In the instant case, the defendant has not challenged the adoption deed before any Court of law, only by filing a written statement a contention has been taken that the adoption deed was executed in consequence of fraud and undue influence without there being any particulars in the pleadings as well as cogent evidence to that effect. 31. The Coordinate Bench of this Court in the case of Veerabhadraiah R.Hiremath vs. Irayya A.F. Basaiah Hiremath as stated supra, held that, except the genitive parents, adoptive parents and the adoptive son, others have no locus standi to question the validity of the adoption deed. The principle laid down by the Coordinate Bench of this Court is squarely applicable to the instant case. 32. For the foregoing reasons, the substantial question of law is answered accordingly, holding that the evidence as regards giving and taking of the adoption finds place in the plaint averments as well as in the evidence rendered by the attesting witnesses. In light of the said circumstances, the finding recorded by the first appellate Court does not call for any interference and accordingly, the substantial question of law is answered, and this Court pass the following: ORDER (i) The regular second appeal is hereby dismissed. (ii) The judgment and decree of the first appellate Court stands confirmed.