M.G.Purushotham vs N.K.Srinivasan on 16 February, 2024

Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services — Free for one month.

Karnataka High Court

M.G.Purushotham vs N.K.Srinivasan on 16 February, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF FEBRUARY, 2024
                                                   R
                         BEFORE

         THE HON'BLE MR. JUSTICE H.P. SANDESH

            R.S.A. NO.498/2007 (DEC/INJ)

BETWEEN:

1.   M.G.PURUSHOTHAM
     AGED ABOUT 60 YEARS
     S/O LATE GURUVAIAH
     RESIDENT OF NO.1013
     I CROSS, UMA TALKIES ROAD
     MYSURU-570001

     SINCE DEAD BY LRS

1(a) SMT.LALITHA
     W/O LATE SRI M.G.PURUSHOTHAM
     AGED ABOUT 60 YEARS

1(b) SRI P.LOKESH
     S/O LATE SRI M.G.PURUSHOTHAM
     AGED ABOUT 43 YEARS

1(c) SRI P.RAGHAVAN
     S/O LATE SRI M.G.PURUSHOTHAM
     AGED ABOUT 42 YEARS

     APPELLANTS 1(a) TO 1(c) R/AT
     D/No.1013, UMA TALKIES ROAD
     LUSKAR MOHALLA, MYSURU-570001.

1(d) SMT. P.SASHIKALA
     W/O SRI SUDARSHAN
                              2



       D/O LATE SRI M.G.PURUSHOTHAM
       AGED ABOUT 45 YEARS
       R/AT NO.131, 1ST R BLOCK
       RAJAJINAGAR
       BENGALURU-560010.

       (AMENDED VIDE COURT ORDER DATED 17.02.2022)

                                           ... APPELLANTS

          [BY SRI G.B.NANDISH GOWDA, ADVOCATE]
AND:

1.     N.K.SRINIVASAN
       AGED ABOUT 50 YEARS
       S/O LATE KARIGOWDA @ KARIYAPPA
       RESIDING AT NO.97/3, 17 CROSS
       I BLOCK, RAJAJINAGAR
       BANGALORE-560010.

       SINCE DEAD BY LRS.

1(a) SMT.SOWBHAGYA
     AGED ABOUT 79 YEARS
     W/O LATE N.K.SRINIVASAN

1(b) SRI N.S.SATISH
     AGED ABOUT 50 YEARS
     S/O LATE N.K.SRINIVASAN

1(c) SRI N.S.HARISH
     AGED ABOUT 46 YEARS
     S/O LATE N.K.SRINIVASAN

       RESPONDENTS 1(a) TO 1(c)
       ARE ALL RESIDENTS
       OF No.E-1/124, 5TH CROSS
       SYNDICATE BANK COLONY
                              3



       BANNERGHATTA ROAD
       BANGALORE-560 076.

1(d) SMT.SARASWATHI
     AGED ABOUT 65 YEARS

1(e) SRI N.S.SOMASHEKAR
     AGED ABOUT 43 YEARS
     S/O LATE N.K.SRINIVASAN

1(f)   SRI CHANDRASHEKAR
       AGED ABOUT 40 YEARS
       S/O LATE N.K.SRINIVASAN

       SINCE DECEASED BY RESPONDENTS
       1(a) TO (e) AND (g) ARE THE LEGAL
       REPRESENTATIVE OF DECEASED R1(f)

       RESPONDENTS 1(d) TO 1(f) ARE ALL
       RESIDING AT NO.97/3, 17TH CROSS
       FIRST BLOCK, RAJAJINAGAR
       BANGALORE-560 010.

1(g) SMT. GEETHA
     AGED ABOUT 45 YEARS
     W/O KRISHNAMURTHY
     RESIDENT OF NO.58, 3RD CROSS
     CHIKKAVEERANNA ROAD
     BANNIMANTAP
     MYSORE-570015.

       (AMENDED VIDE COURT ORDER DATED 9.4.2019)

2.     THE TAHSILDAR
       MADDUR TALUK, MADDUR,
       MANDYA DISTRICT-571428.             ... RESPONDENTS

                 [BY SRI SAGAR B.B., &
  SRI SATHISH M.DODDAMANI, ADVOCATES FOR R1(d, e, g);
                                  4



               SMT. M.V.ADHITHI, AGA FOR R2;
               VIDE ORDER DATED 06.02.2012,
              NOTICE TO R1(a) HELD SUFFICIENT
            NOTICE TO R1(b & e) HELD SUFFICIENT
               VIDE ORDER DATED 16.04.2012,
         NOTICE TO R1(b & c) ARE HELD SUFFICIENT
               VIDE ORDER DATED 06.03.2020,
   R1(a to e & g) ARE TREATED AS LRS OF DECEASED R1(f)]

     THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 10.11.2006 PASSED IN R.A.NO.
186/2004 ON THE FILE OF THE PRL.DISTRICT JUDGE, MANDYA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 16.7.2004 PASSED IN OS.NO. 122/2000
ON THE FILE OF THE CIVIL JUDGE (SR.DN.), MADDUR.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    06.02.2024 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                         JUDGMENT

Heard the learned counsel for the appellants and learned

counsel for the respondents.

2. The case of the plaintiff before the Trial Court is that

the plaintiff is the native of Nidagatta Village, owning the

agricultural lands bearing Sy.No.89/1, measuring 1.16 guntas,

Sy.No.90/1 measuring 1.26 guntas, Sy.No.95 measuring 2

acres. ‘A’, ‘B’ and ‘C’ schedule properties are ancestral, apart

from the land bearing Sy.Nos.110/3, 115/2 extending 2.06
5

guntas, which is also ancestral. ‘A’ and ‘B’ schedule properties

fell to the share of late T. Thammaiah, the half brother of

plaintiff as per the registered release deed dated 05.05.1943.

The ‘B’ schedule was acquired out of the nucleus from ‘A’

schedule properties. Except Sy.No.95, all other properties

mentioned above were ancestral properties which late Karigowda

@ Kariyappa delivered to his share after separation from the

brothers Puttaswamy Gowda and Pape Gowda. Late Karigowda,

father of plaintiff had two wives by name late Thimmamma and

Venkatamma. Through Thimmamma, one son late T. Thimmaiah

was born. From second wife late Venkatamma, late

K. Thammaiah and plaintiff Srinivasan were born. After the

release deed dated 05.05.1943, late Thimmaiah was living

separately along with wife Nanjamma, till his death in 1954.

Late Karigowda, late K. Thammaiah and plaintiff lived as co-

parceners till the death of father Karigowda, who died in 1950.

Thereafter, late K. Thammaiah also died in the year 1964

intestate and issueless as a bachelor. Accordingly, plaintiff

became the sole surviving co-parcener of the undivided family of

late Karigowda @ Kariyappa. Late T. Thammaiah died issueless
6

in the year 1954, leaving behind him, his widow Nanjamma and

plaintiff. Nanjamma entitled only for maintenance and plaintiff

as a half brother entitled for succession to ‘A’, ‘B’ and ‘C’

schedule properties by virtue of the law as prevailed then.

Plaintiff was taking care of widow Nanjamma and jointly enjoying

‘A’, ‘B’ and ‘C’ schedule properties and administering the

properties. Plaintiff was in Government Service, visiting village

periodically and taking care of late Nanjamma, till her death on

05.07.1995. The defendant happens to be the brother is son of

late Nanjamma. Therefore, he purports to have taken advantage

of his relationship and lonely life of late Nanjamma, he has

manipulated some records to claim succession rights to ‘A’ and

‘B’ schedule properties. One Guruvaiah, father of the defendant,

who is also brother of late Nanjamma created spurious adoption

deed dated 30.05.1954, that shows late Nanjamma had taken

defendant in adoption. A plain reading of the same establish

that, it is in the nature of an agreement between Nanjamma and

defendant, who was minor aged about 8½ years, who was not

represented by a guardian. Adoption deed does not confer any

right to the defendant. He remains only as the son of late
7

Guruvaiah. He cannot claim succession rights to the plaintiff

schedule properties. Defendant applied for transfer of khatha in

respect of suit schedule properties. The same was objected by

the plaintiff.

3. After the release deed dated 16.03.1943, the khatha

entries made in the name of late T. Thammaiah. However, the

khatha was subsequently changed in the name of late

Nanjamma in 1989. Defendant fraudulently got the khatha

transferred in his name in collusion with revenue official. Late

Nanjamma died on 05.07.1995 in private hospital at Mysore.

She was cremated at Mysore and rituals also got performed at

residence of the defendant for the sake convenience. On the 5th

day ceremony, the plaintiff learnt about the clandestine

movements of the defendant to sell away ‘A’ and ‘B’ schedule

properties. He then brandished a purported adoption deed

proclaiming that he is the successor to the schedule properties

by virtue of adoption deed. Plaintiff waited till 15.07.1995 i.e.,

11th day ceremony of late Nanjamma and given representation

to the Tahsildar, Maddur. Then plaintiff issued legal notice to the
8

defendant. In the year 1954, Hindu Adoption Act had not come

into vague and therefore, the Hindu Law then prevailing did not

warrant an adoption deed as such, defendant was 8½ year old at

that time, which was quite against the law then prevailing.

There was no giver of the so called adopted child. The father of

the defendant was not a party to the deed and the document is

not valid. Hence, filed the suit seeking the relief that properties

were reverted to the co-parcenery family of late T. Thammaiah

i.e., the plaintiff, who is a half brother of the defendant. It is

also contended that adoption deed is null and void and the

plaintiff is in possession of the properties and hence, he is

entitled for the relief of declaration and permanent injunction.

4. The defendant No.2 was a formal party and he has

not appeared and placed exparte. The defendant No.1 appeared

through counsel and filed written statement, wherein he

admitted that the properties were taken by T. Thammaiah and

executed release deed and also admitted the relationship as

stated by the plaintiff. It is denied that plaintiff and late

Nanjamma, the widow of late T. Thammaiah were enjoying the
9

‘A’, ‘B’ and ‘C’ schedule properties and administering the

properties. It is contended that the suit is barred by limitation.

Schedule ‘C’ item is self-acquired property of deceased

Nanjamma. T. Thammaiah died in 1964 leaving behind him, his

wife Nanjamma without issues. She succeeded to the properties

as sole heir prior to his death. T. Thammaiah has given authority

to Nanjamma to adopt defendant No.1, who was already under

the care of T. Thammaiah. Accordingly, Nanjamma adopted

defendant No.1 and continued to live as mother and son. The ‘B’

and ‘C’ schedule properties are self-acquired properties of

Nanjamma, which she got under Darkasth and by purchase

respectively. T. Thammaiah became separate from his family

and began to cultivate lands he took under release deed. They

were succeeded to by Nanjamma and his adopted son by

defendant No.1. Defendant No.1 and adoptive mother

Nanjamma sold three items of property under three different

sale deeds dated 29.02.1956. Defendant No.1 performed all the

rituals of Nanjamma. He succeeded to the suit schedule

properties. Plaintiff is stranger to the family of Nanjamma and is
10

not in possession of these properties. Hence, prayed the Court to

dismiss the suit.

5. The plaintiff, after filing of written statement, filed

rejoinder and contended that after the death of late T.

Thammaiah, the suit schedule items were reverted back to the

co-parcenery family members of late T. Thammaiah. Nanjamma

had only maintenance rights as per Karnataka Hindu Law

Womens Rights Act, 1933 and therefore, the plaintiff as the sole

surviving co-parcener of the family of late T. Thammaiah

succeeded to his estate i.e., ‘A’ and ‘B’ schedule properties. It is

contended that obsequious performed at the cost of plaintiff and

remained by contribution from relatives.

6. The Trial Court, taking note of the pleadings of the

plaintiff and the defendants, framed the following issues:

“1. Whether the suit properties were reverted back
to the co-parcenery family members of late T.
Thammaiah?

2. Whether the plaintiff proves that the alleged
adoption deed dated 30.05.1954 relating to
defendant No.1 is null and void?

11

3. Whether the plaintiff further proves that he is
the absolute owner in possession of A and B
schedule properties?

4. Whether the plaintiff proves the alleged
interference of the defendant No.1 over the ‘A’
and ‘B’ schedule properties?

5. Whether the plaintiff is entitled for the relief of
declaration?

6. Whether the plaintiff is entitled for the relief of
permanent injunction?

7. To what order or relief, the plaintiff is entitled
for?”

7. In order to prove the case, the plaintiff examined

himself as P.W.1 and examined three witnesses as P.Ws.2 to 4

and got marked the documents as Exs.P1 to P28. On the other

hand, the defendant No.1 examined himself as D.W.1 and

examined one witness as D.W.2 and got marked the documents

as Exs.D1 to D18.

8. The Trial Court, having considered both oral and

documentary evidence placed on record, answered all the issues

as ‘affirmative’, in favour of the plaintiff and granted the relief of
12

declaration declaring the plaintiff as the absolute owner of ‘A’

and ‘B’ schedule properties and further declared the alleged

adoption deed as null and void and not binding on the plaintiff.

The Trial Court also directed the defendant No.1 or any person

on his behalf is restrained from interfering over plaintiff’s

peaceful possession and enjoyment over ‘A’ and ‘B’ schedule

properties.

9. Being aggrieved by the judgment and decree of the

Trial Court, the present appellant has filed an appeal before the

First Appellate Court in R.A.No.186/2004 and considering the

grounds urged in the appeal, the First Appellate Court

formulated the following points for consideration:

“1) Whether the defendant has proved that he is
duly adopted son of Nanjamma and
T. Thammaiah and that original of Ex.D2 is the
duly and validly executed adoption deed?

2) Whether the defendant has proved that suit is
barred by limitation, particularly as regards
prayer for cancellation of adoption deed?


      3)      Whether the plaintiff has proved that he is the
              owner in possession of the suit properties
                                 13



            being   the   reversioner    of   the   family   of
            T. Thammaiah?

      4)    Whether the impugned judgment and decree
            call for interference in this appeal?


10. The First Appellate Court answered both point Nos.1

and 2 as ‘negative’, point No.3 as ‘affirmative and point No.4 as

‘negative’, in coming to the conclusion that the judgment and

decree of the Trial Court does not call for interference and

dismissed the appeal. Being aggrieved by the judgment and

decree of the Trial Court and dismissal of appeal by the First

Appellate Court, the present second appeal is filed before this

Court by the appellant/defendant No.1.

11. The main contention of the appellant/defendant No.1

in this appeal is that there is no dispute with regard to the fact

that original propositus of the family is one Karigowda. Learned

counsel also would submit that no dispute with regard to the fact

that he had two wives by name Thimmamma and Venkatamma.

The first wife Thimmamma had no issues through Karigowda and

through second wife Venkatamma, Karigowda had two sons i.e.,
14

the plaintiff and another son by name Srinivasan, who died as

bachelor and plaintiff is the only son, who remained to said

Karigowda through second wife. It is also the contention that

there was a release deed of the year 1943 and no dispute to that

effect. The very contention of the plaintiff before the Trial Court

is that the adoption was not brought to the notice of the plaintiff

and date on which the adoption was made is also not pleaded

and the ceremony in this regard and the persons who were

present is not pleaded and proved. Learned counsel for the

appellant would vehemently contend that the Trial Court

accepted the case of the plaintiff without considering both oral

and documentary evidence placed on record. The counsel would

vehemently contend that Ex.D2 is the document of adoption

deed and natural father is the attester of the said document.

The defendant No.1 being an adopted son became the absolute

owner of the suit schedule properties. It is also not in dispute

that adoption deed was registered in the year 1954 itself and the

same is prior to Hindu Adoption and Maintenance Act, 1956.

Learned counsel also would vehemently contend that the

revenue records also reveal that after the death of Nanjamma’s
15

husband, the property is transferred in the name of Nanjamma

and thereafter, the property was changed in the name of the

defendant No.1.

12. The counsel also would vehemently contend that the

very judgment and decree of the Trial Court is erroneous and

failed to take note of the fact that deed of adoption came into

existence in the year 1954 itself. The counsel also would

vehemently contend that very Nanjamma sold three properties

under different sale deeds on 29.02.1956, wherein a reference

was made with regard to defendant No.1 is her adopted son.

Learned counsel would vehemently contend that the certified

copy of the adoption deed and three sale deeds are also

produced before the Court as Exs.D2 to D5 and contend that the

very approach of the Trial Court and the First Appellate Court is

erroneous. The counsel would vehemently contend that Hindu

Womens Rights to Property Act, 1937 is very clear that a widow

can take adoption. Learned counsel in his argument would

vehemently contend that under Section 9 of the Karnataka Hindu

Law Women’s Rights Act, 1933 viz., Authority to adopt, a
16

provision is made that in the absence of an express prohibition in

writing, by the husband, his widow, or, where he has left more

widows than one, the senior most of them shall be presumed to

have his authority to make an adoption. It is contended that

both the Courts have failed to take note of the Hindu Womens

Rights to Property Act, 1937 and the Karnataka Hindu Law

Women’s Rights Act, 1933. The counsel would contend that

Section 9 of the Hindu Women’s Rights to property Act permits a

widow to take adoption. The counsel also would vehemently

contend that suit is barred by limitation and Section 14 applies

subsequent to Hindu Succession Act, 1956. It is contended that

both the Trial Court and the First Appellate Court not considered

the pleadings and the fact that certified copies are produced

before the Court, since originals were not available. The counsel

also would vehemently contend that both the Courts failed to

take note of the material available on record i.e., both oral and

documentary evidence placed on record.

13. Learned counsel for the appellant/accused No.1 in

support of his argument, relied upon the judgment of the Apex
17

Court in ERAMMA AND OTHERS VS. MUDDAPPA reported in

AIR 1966 SC 1137 and brought to notice of this Court Para

No.4, wherein the Apex Court has discussed on the question of

authority the law in the State of Mysore is to be found in Mysore

Act 10 of 1933 entitled Hindu Law Womens Rights Act, 1933.

14. The counsel also relied upon the judgment of the

Apex Court in SRI LAKHI BARUAH AND OTHERS VS. SRI

PADMA KANTA KALITA AND OTHERS reported in AIR 1996

SC 1253 and brought to notice of this Court Para Nos.15 to 17

with regard to Section 90 of the Evidence Act i.e., presumption

as regards genuineness of the document of 30 years old.

15. The counsel also relied upon the judgment of the

Apex Court in GOSWAMI SHREE VALLABHALAJI VS.

GOSWAMINI SHREE MAHALAXMI BAHUJI MAHARAJ AND

ANOTHER reported in AIR 1962 SC 356 and brought to notice

of this Court Para No.24 of the judgment, wherein the Apex

Court has observed that adoption is invalid in the absence of

consent by the husband’s sapindas must be rejected, for the

simple reason that the letter Ex.115 and the evidence of the
18

plaintiff’s own witnesses justify the conclusion that in his life

time Annirudhalalji authorized Mahalakshmi Bahuji Maharaj to

make an adoption after his death though at the same time

indicating his preference for one particular boy. The necessity of

consent of the husband’s sapindas would arise if the Madras

School of Mitakshara law was applicable only where there was no

authority from the husband.

16. The counsel also relied upon the judgment of this

Court in R.S.A.NO.200036 OF 2014 dated 10.10.2023 with

regard to presumption 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 as

well as Section 16 of the Hindu Adoption and Maintenance Act,

1956 with regard to presumption as to the registered documents

relating to adoption and comes to the conclusion 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 counsel referring this judgment would vehemently

contend that the plaintiff cannot question the adoption deed,
19

since he is not a genitive parent or an adoptive parent or an

adoptive son and he has no locus standi to question the same.

17. Learned counsel for the appellant referring these

judgments and Hindu Womens Rights to Property Act, 1937 and

Section 9 of the Karnataka Hindu Law Women’s Rights Act,

1933, would vehemently contend that the very approach of the

Trial Court and the First Appellate Court is erroneous and it

requires interference at the hands of this Court.

18. Per contra, learned counsel for the respondents

would vehemently contend that the propositus of the family

Karigowda had two wives i.e., Thimmamma and Venkatamma

and through first wife had a son by name T. Thammaiah and

through the second wife, he had two sons i.e., a son by name

Srinivasan, who died as bachelor and the plaintiff. The counsel

would vehemently contend that in terms of the release deed,

two items of the properties had fallen to the share of

T. Thammaiah. The counsel also would vehemently contend that

the adoption and the date on which adoption was made was not

brought to the notice of the plaintiff at any point of time and
20

with regard to the ceremony of adoption and the persons who

were present, nothing is pleaded and proved. The document of

Ex.D2 is relied upon by the defendant No.1 as a natural father

and attester of the document and he is not a party to adoption.

The defendant No.1 was aged 8 years at the time of alleged

adoption and document of Ex.D2 is not a valid document and no

pleadings with regard to the consent and any ceremony of giving

and taking the adoption. Hence, it is contended that the Trial

Court has appreciated both oral and documentary evidence

placed on record and contend that under Karnataka Hindu Law

Women’s Rights Act, 1933, a widow can take adoption but, elder

son cannot be given as adoptive son and both the Courts have

extensively considered the material on record. It is also

contended that the First Appellate Court in Para Nos.14 to 21 of

the judgment discussed in detail as regards the venue where the

adoption had taken place and ceremony of adoption has not

been stated. The adoption is not considered in other matter and

based on the earlier documents, the defendant cannot prove the

adoption and none were having personal knowledge i.e., either

the D.W.1 or the D.W.2 and no iota of evidence to prove the
21

adoption. Hence, the adoption was not in the knowledge and

therefore, no limitation arises and the defendant No.1 is a

stranger. It is contended that though Nanjamma as a widow is

entitled, but when there is no material to prove the adoption, the

question of considering the defendant No.1 as an adopted son

does not arise and both the Courts have considered the same in

detail and there is no merit in the second appeal.

19. In reply to the arguments of the learned counsel for

the respondents, learned counsel for the appellant would

vehemently contend that adoption was made prior to 1954 and

the document of Ex.D2 came into existence in the year 1954

itself and the very document of Ex.D2 speaks about the consent

and an authority given to Nanjamma to take adoption. Learned

counsel would vehemently contend that plaintiff cannot question

the adoption and he was not having any locus standi to

challenge the same.

20. This Court, having considered the grounds urged,

while admitting the appeal, framed the following substantial

questions of law which reads as hereunder:

22

i) Whether the Courts below are right in rejecting
the adoption deed and the adoption of the
appellant by Nanjamma for and on behalf of
her husband T. Thammaiah when the appellant
has produced in support of his plea of adoption
documents Exs.D1 to D18?

ii) Whether the Courts below are right in putting
the plaintiff in strict burden of proof for an
adoption which has taken place in the year
1954 and the same came to be challenged
before the Court after a lapse of 42 years in
the year 1996?

iii) Whether the Courts below are right in insisting
the appellant to prove the fact of adoption with
the strict rules of evidence after a lapse of
more than 50 years when all the oral evidence
and other evidences are not available due to
lapse of time?

iv) Whether the Courts below are right in holding
that the respondent is a coparcener entitled for
ownership of the Plaint Schedule ‘A’ and ‘B’
properties when there was partition between
the coparceners in the year 1943 which is
evidenced by way of a registered release deed
executed by T. Thammaiah the adoptive father
of the appellant?

23

v) Whether the Courts below are right in
declaring the ownership rights of the plaint
schedule ‘A’ and ‘B’ properties in favour of the
First Respondent when Section 14 of the Hindu
Succession Act gives an absolute right to
Nanjamma after 1956 over the properties held
by her?

Substantial Questions of law (i) to (v):

21. Having taken note of the substantial questions of law

framed by this Court and the material available on record, this

Court would like to make a mention of undisputed facts. It is not

in dispute that there was a release deed in the year 1943

executed by T. Thammaiah and the properties were vested with

T. Thammaiah after 1943 and he was in possession of the

properties and living separately. It is also not in dispute that the

original propositus of the family had two wives and

T. Thammaiah had no issues through his wife Nanjamma. It is

the case of the plaintiff that property reverts back to him, since

said Nanjamma died in the year 1995. It is the claim of the

plaintiff that after the death of said T. Thammaiah, he has taken

care of Nanjamma throughout her life and he was in joint
24

possession with said Nanjamma and he was cultivating the suit

‘A’ and ‘B’ schedule properties. It is also not in dispute that

since the ‘C’ schedule property is self-acquired property of

Nanjamma, no relief is granted in respect of ‘C’ schedule

property in favour of the plaintiff.

22. The plaintiff in order to prove the case, examined

himself as P.W.1 and also examined three witnesses as P.Ws.2

to 4 to establish that he is in possession of the properties. On

the other hand, the defendant No.1, who claims that he is an

adopted son of Nanjamma, in order to prove his contention,

relied upon Exs.D1 to D18 that adoption had taken place in the

year 1954 itself i.e., prior to Hindu Succession Act, 1956. It is

also his contention that immediately after the adoption, three

properties were sold by Nanjamma in the year 1956 i.e., on

29.02.1956 itself, wherein she has mentioned that defendant

No.1 is her adopted son and documents are produced before the

Court to that effect as Exs.D3 to D5. It is also the contention of

the learned counsel for the appellant that the Trial Court

committed an error in considering the strict compliance of
25

adoption and failed to take note of the fact that adoption has

taken place in the year 1954 itself. The counsel also would

vehemently contend that in terms of the Karnataka Hindu Law

Women’s Rights Act, 1933, Nanjamma has right to take adopt

defendant No.1 as her son. The very conclusion reached by both

the Courts that a widow has no right to adopt is against law.

23. The other contention is that suit is barred by

limitation is not properly considered and Section 14 applies

subsequent to Hindu Succession Act, 1956. Having considered

the reasoning given by the Trial Court and the First Appellate

Court and also the contention urged by the learned counsel for

the appellant, the counsel mainly relied upon Karnataka Hindu

Law Women’s Rights Act, 1933. This Court would like to refer

Section 9 of the said Act, which reads as hereunder:

“9. Authority to adopt:- (1) In the absence
of an express prohibition in writing, by the husband,
his widow, or, where he has left more widows than
one, the senior most of them shall be presumed to
have his authority to make an adoption

(2) No adoption made by widow shall,-

26

(a) divest her of her estate in any stridhana
property, other than such as she may have taken by
inheritance from her husband; or

(b) affect her right to obtain at any time, at her
option, either maintenance charged upon the
property inherited from her husband, or a separate
share therein equal to one-half of the share of the
adopted son; or

(c) affect her right to manage such property, as
well as to act as the guardian of the person of the
adopted son, during his minority.

(3) An arrangement made prior to or at the time of
an adoption as aforesaid, whereby the adopted son if
he be a major, or his natural father or mother if he
be a minor, agrees to his rights in or over the
property of the adoptive father being limited,
curtailed, or postponed in the interests of the
adoptive mother, shall be valid and binding on the
adopted son”.

24. Learned counsel for the appellant in support of this

provision, relied upon the judgment of the Apex Court in

ERAMMA AND OTHERS VS. MUDDAPPA reported in AIR

1966 SC 1137, wherein the Apex Court has held with regard to

authority of a widow for adoption under Hindu Law, law in State

of Mysore, under Mysore Hindu Law Women’s Rights Act (10 of

1933), Section 9 presumption is that widow has authority and
27

held that the said presumption is not rebutted. The Mysore

Hindu Law Womens Rights Act (10 of 1933) and Section 9 is

very clear that, in the absence of an express prohibition in

writing by husband, his widow or where he has left more widows

than one, the senior most of them shall be presumed to have his

authority to make an adoption. Ordinarily authority to adopt will

be presumed. The law in this respect is thus in line with the law

in the Bombay State. Ordinarily this presumption can be

rebutted by establishing that the husband had expressly

prohibited her from making an adoption. Such a prohibition

could be established either by direct evidence or by

circumstantial evidence. Long delay in making the adoption is

explicable by reason of the fact that the widow was in her

twenties when her husband died and it was natural that at such

an early age she would not take the risk of divesting herself of

her interest in the property by making an adoption and leave

herself at the mercy of the adopted son, and the fact that later

the Mysore Hindu Law Women’s Rights Act came into force,

under Section 8 of which the widow of a deceased co-parcener

belonging to the joint Hindu family was given a right to share in
28

the family property, would not rebut the presumption. The law

as it stood in Mysore at the relevant time did not require a

widow to proclaim to anyone that she had an authority to adopt

a son to her husband. The law on the other hand was that she

could make an adoption unless she was expressly prohibited

from doing so. The fact that no mention of authority was made

in the deed, therefore would not go to rebut the presumption.

Similarly the mere existence of a daughter is not sufficient to

rebut the presumption and detailed discussion was made in Para

No.4 of the judgment on the question of authority, the law in the

State of Mysore is to be found in Mysore Act 10 of 1933 entitled

Hindu Law Woman’s Rights Act, 1933 and Section 9(1) of the

Act.

25. Having read Section 9 of the Hindu Law Womans

Rights Act, 1933 as well as the judgment of the Apex Court, it is

clear that under Mysore Act 10 of 1933, a widow has authority

for adoption and presumption has to be rebutted. The principle

is also very clear that the law as it stood in Mysore at the

relevant time did not require a widow to proclaim to anyone that
29

she had an authority to adopt a son to her husband. The law on

the other hand was that she could make an adoption unless she

was expressly prohibited from doing so, there was no express

prohibition in taking adoption of defendant No.1, who is none

other than the son of brother of Nanjamma. The fact that no

mention of authority was made in the deed, therefore would not

go to rebut the presumption.

26. In the case on hand, there is a specific averment in

the document of Ex.D2 that adoption has taken place in the year

1954 itself, when her husband gave authority to take defendant

No.1 in adoption and it is also stated that the defendant No.1

was living along with them, even prior to adoption in the year

1954. It is also important to note that the main contention of

the appellant/defendant No.1 before the Trial Court is that

immediately after the adoption deed came into existence in the

year 1954, Nanjamma had sold three items of property vide sale

deeds dated 29.02.1956 itself, wherein reference is made that

the defendant No.1 is her adopted son. It is also important to

note that the document of sale deeds are also marked as Exs.D3
30

to D5 which came into existence in the year 1956 itself. Having

referred those documents, there is a clear recital that Nanjamma

had adopted the defendant No.1 and reference is made with

regard to sale of properties on her behalf and on behalf of her

adopted son and the said sale is also not in dispute and the only

contention is that original sale deeds were not summoned. When

the documents are registered in the year 1956 and are not in the

custody of the defendant No.1, the question of producing the

original primary evidence does not arise, since certified copies

are marked and the said transactions have taken place in the

year 1956 itself and the presumption of documents and

presumption of adoption are not rebutted. There is no any

express provision of prohibition in taking adoption.

27. Learned counsel for the appellant also relied upon

the judgment of the Apex Court in SRI LAKHI BARUAH AND

OTHERS VS. SRI PADMA KANTA KALITA AND OTHERS

reported in AIR 1996 SC 1253 and brought to notice of this

Court Para No.15, wherein the Apex Court has observed that

Section 90 of the Evidence Act is founded on necessity and
31

convenience because it is extremely difficult and sometimes not

possible to lead evidence to prove handwriting, signature or

execution of old documents after lapse of thirty years. In order

to obviate such difficulties or improbabilities to prove execution

of an old document. Section 90 has been incorporated in the

Evidence Act, which does away with the strict rule of proof of

private documents. Presumption of genuineness may be raised if

documents in question is produced from proper custody. It is,

however, the discretion of the Court to accept the presumption

flowing from Section 90. There is, however, no manner of Court

that judicial discretion under Section 90 should not be exercised

arbitrarily and not being informed by reasons. In Para No.17

also, the Apex Court held the position since the aforesaid Privy

Council decisions being followed by later decisions of different

High Courts is that presumption under Section 90 does not apply

to a copy or a certified copy even though thirty years old : but if

a foundation is laid for the admission of secondary evidence

under Section 65 of the Evidence Act by proof of loss or

destruction of the original and the copy which is thirty years old

is produced from proper custody, then only the signature
32

authenticating the copy may under Section 90 be presumed to

be genuine.

28. The Apex Court in the judgment in GOSWAMI

SHREE VALLABHALAJI VS. GOSWAMINI SHREE

MAHALAXMI BAHUJI MAHARAJ AND ANOTHER reported in

AIR 1962 SC 356 in Para No.24, which I have already

discussed (supra) observed that is clear that the necessity of

consent of the husband’s sapindas would arise, if the Madras

School of Mitakshara law was applicable only where there was no

authority from the husband. I have already pointed out that in

the document of Ex.D2, it is specifically mentioned with regard

to the fact that authority was given to Nanjamma and it is also

stated that even prior to execution of document, formalities were

done and the same is also spoken by P.W.1 in his evidence. It is

also clear that though the adoption deed which is marked as

Ex.D2 is not by both the parents, the fact that the natural father

had attested the document of registered adoption deed executed

in the year 1954 is not disputed. Though the said document is

not in terms of giving and taking ceremony consequent upon the
33

Hindu Succession Act, 1956, but the very attestation by the

natural father is clear that he gave consent for adopting

defendant No.1 as the son of Nanjamma and the same has taken

place prior to 1956. The principles laid down in the judgments of

the Apex Court in SRI LAKHI BARUAH’s case and GOSWAMI

SHREE VALLABHALALJI’s case have to be taken note of while

appreciating the material available on record.

29. The Trial Court and the First Appellate Court, while

considering the material on record with regard to the adoption is

concerned, failed to take note of the document of Exs.D1 to D18

and this Court considering the grounds which have been urged in

the second appeal, framed the substantial questions of law with

regard to rejection of adoption deed and adoption of appellant by

Nanjamma for and on behalf of her husband T. Thammaiah and

the document of Ex.D2 is very clear that authority was given to

wife i.e., Nanjamma and this Court has discussed with regard to

the Karnataka Hindu Women’s Rights Act, 1933 and the

documents produced before the Court evidence the fact that

defendant No.1 was the adopted son of Nanjamma. It is
34

important to note that document of adoption deed came into

existence long back in the year 1954 and sale deeds are

executed in the year 1956 with respect to sale of three items of

properties. Thus, both the Courts committed an error in coming

to the conclusion that the adoption is not proved only on the

ground that there is no giving and taking ceremony being held

and both the Courts failed to take note of the registered

documents of the year 1954 and 1956 and when the documents

are registered documents, both the Courts ought to have taken

note of Section 90 of the Evidence Act and the same is not

considered.

30. The principles laid down in the judgment of the Apex

Court in SRI LAKHI BARUAH’s case with regard to Section 90

of the Evidence Act provides that if original documents are in the

custody of the owners, who purchased the property in the year

1956, securing the said documents executed in the year 1956 is

very difficult and hence, the appellant has secured the certified

copies of the same before this Court and the document of the

year 1956 cannot be disputed after lapse of 40 years. This Court
35

also in the judgment in R.S.A.NO.200036 OF 2014 dated

10.10.2023 relied upon by the learned counsel for the appellant

framed the substantial question of law, 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

and the same is answered by looking into the provisions of

Sections 11 of the Hindu Adoption and Maintenance Act, 1956.

This Court would like to refer Section 11 of the Hindu Adoption

and Maintenance Act, 1956, which reads as hereunder:

“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
36

twenty-one 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
twenty-one 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 a 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 an adoption.”

31. Having considered Section 11 of the Hindu Adoption

and Maintenance Act, 1956, it lays down some vital rules

relating to the law of adoption and the rules and conditions

stated in the section are absolute and non-compliance 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
37

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 Hindu Adoption and Maintenance Act, 1956,

and the position under the Act is identical and the Apex Court in

the case of JAISINGH VS. SHAKUNTALA reported in (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 child from one family to another.

32. In the case on hand, it has to be noted that adoption

has taken place in the year 1954 and there is an overt act to

signify delivery of the child from one family to another and in the

document of registered sale deeds executed in the year 1956,

the very adoptive mother recognized the defendant No.1 as her

adopted son and disposed of the properties on 29.02.1956 itself

recognizing the right of defendant No.1 as adopted son and the
38

same is nothing but some overt act to signify the delivery of

child from one family to another and acted upon in terms of the

said adoption deed of the year 1954 which is a registered

document. This Court would like to extract Section 16 of the

Hindu Adoption and Maintenance Act, 1956, 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”.

33. Section 16 of the Hindu Adoption and Maintenance

Act, 1956 is also very clear that 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 his

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
39

until it is disproved. I have already pointed out that the natural

father has attested the adoption deed which was executed in the

year 1954 and there is no rebuttal evidence, except the say of

the plaintiff that he has taken care of said Nanjamma, but

admission given by P.W.1 is very clear that after the death of

husband of Nanjamma, she has been in possession of the

property. However, the plaintiff claims that he was in joint

possession, but none of the document disclose that he was in

joint possession with said Nanjamma. Apart from that the

records reveal that when Nanjamma died in the year 1995, the

defendant No.1 himself has conducted the obsequious and the

plaintiff also claims that he has attended 5th day ceremony and it

is not his case that he performed the last rituals. Further, the

said Nanjamma herself performed the marriage of daughter of

defendant No.1 and the ration card and other documents reveal

that defendant No.1 continued along with said Nanjamma

throughout her life. These documents are not taken note by the

Trial Court and the First Appellate Court and when there is a

presumption with regard to validity of the adoption and when the

adoption deed is registered, and in such circumstances, the
40

adoption is in conformity with the Act as held by the Apex Court

in the case of SAROJA VS. SENTHIL KUMAR reported in

(2011) 11 SCC 483.

34. It is also important to note that the adoption is

challenged after more than 42 years in the year 1996 and

adoption has taken place in 1954, strict rules of Evidence after a

lapse of 50 years cannot be insisted when both oral and

documentary evidence are available before the Court,

particularly the registered documents and due to lapse of time, it

is highly difficult to prove giving and taking ceremony of

adoption and the same is not considered by the Trial Court and

the First Appellate Court. No doubt, it is the contention of the

plaintiff that property reverts back to co-parcener, the said

contention cannot be accepted and it has to be noted that there

was a partition between co-parcener in the year 1943 itself by

way of registered release deed executed by T. Thammaiah i.e.,

adoptive father of the appellant and subsequently, adoption deed

came into existence in the year 1954 and the property was sold
41

in the year 1956 recognizing the right of the adopted son and

there was reference in the document of Exs.D3 to D5.

35. It is also important to note that in view of Hindu

Succession Act, 1956, when an adoptive mother inherits

property from her mother and consequent upon Section 14 of

the Hindu Succession Act, 1956, she becomes the absolute

owner of the property and she has an absolute right after 1956,

since property is held by her. When such being the case, when

all the material on record discloses that plaintiff was not in

possession of the property and when there is a clear admission

on the part of P.W.1 that plaintiff was not in possession and

Nanjamma was in possession, however an attempt is made to

claim that he was in joint possession, though nothing is placed

on record to prove the same. Hence, both the Courts committed

an error in coming to the conclusion that the plaintiff is in

possession of the suit schedule properties and both the Courts

failed to take note of the revenue documents and subsequent to

the death of her husband, the revenue documents were standing

in the name of Nanjamma and that too, in the year 1989, khatha
42

has been transferred in the name of Nanjamma and also there

was an admission that she was in possession of the properties

after the death of her husband and thereafter, she also died in

the year 1995 and immediately after 1995, present suit is filed.

36. It is important to note that when the document is

registered in the year 1954 and the sale deeds were executed in

the year 1956 in favour of the prospective purchasers, the very

contention of the plaintiff that he came to know about the same

when claim was made based on the adoption deed cannot be

accepted and registration of the document itself is a notice to the

all and both the Courts failed to take note of the fact that suit is

filed after lapse of 40 years of adoption and erroneously comes

to the conclusion that suit is barred by limitation and the very

approach of both the Courts is erroneous and committed an

error in declaring the ownership right in respect of suit schedule

‘A’ and ‘B’ properties in favour of the plaintiff and failed to

consider Section 14 of the Hindu Succession Act, 1956 as well as

both oral and documentary evidence available on record,

particularly the documents of Exs.D1 to D18.

43

37. The adoption is also challenged by the plaintiff, who

is the brother of the husband of Nanjamma and this Court in the

judgment in VEERABHDRAYYA R. HIREMATH (D) BY L.Rs.

VS. IRAYYA A.F. BASAYYA HIREMATH reported in 2006 A I

H C 1734, held that except the adoptive parents and adoptive

son, others have no locus standi to question the validity of the

adoption deed. The principles laid down by co-ordinate Bench of

this Court is squarely applicable to the instant case which has

been considered in the judgment of this Court in

R.S.A.NO.200036 OF 2014 dated 10.10.2023. Hence, the

plaintiff cannot question the adoption and validity of the

adoption deed and the plaintiff has no locus standi to question

the same. Hence, I answer the substantial questions of law

framed by this Court accordingly that both the Courts committed

an error in rejecting the claim of defendant No.1 that he is an

adopted son and failed to consider both oral and documentary

evidence and after a long time i.e., 42 years, strict burden of

proof for an adoption cannot be insisted when presumption is

available under Section 16 of Hindu Adoption and Maintenance

Act, 1956 which I have already discussed.

44

38. In view of the discussion made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment and decree of the
Trial Court passed in O.S.No.122/2000 and the
First Appellate Court passed in
R.A.No.186/2004 are set aside and
consequently, the suit is dismissed.

Sd/-

JUDGE

ST

[ad_2]

Add a Comment

Your email address will not be published. Required fields are marked *