Karnataka High Court
Ramaswami vs Siddappa Dharmanna Chimmalagi on 8 September, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
RFA No. 1805 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO. 1805 OF 2007 (DEC/INJ)
BETWEEN:
SRI RAMASWAMI
S/O LENKAPPA CHIMMALAGI
(ADOPTED SON OF YAMANAPPA)
AGED ABOUT 33 YEARS
OCC: AGRICULTURE
R/O RAMPUR, TQ: BAGALKOT
DIST: BAGALKOT - 575 101
...APPELLANT
(BY SRI SANTHOSH B MALLIGEWAD, ADVOCATE FOR
SRI JAGADISH PATIL, ADVOCATE)
AND:
1. SRI SIDDAPPA DHARMANNA CHIMMALAGI
AGED ABOUT 64 YEARS
OCC : AGRICULTURE
R/O RAMPUR TALUK AND
SIST. BAGALKOT - 575 101
2. SRI SHIVARAYAPPA
S/O DHARMANNA CHIMMALAGI,
AGED ABOUT 54 YEARS
R/O - DO -
3. SRI LENKAPPA
S/O DHARMANNA CHIMMALAGI
AGED ABOUT 66 YEARS
OCC: BUSINESS
R/O MPT FACTORY
VASCO, GOA - 403 001
-2-
RFA No. 1805 of 2007
4. SRI YALLAPPA
S/O DHARMANNA CHIMMALAGI
AGED ABOUT 59 YEARS
OCC: AGRICUTLURE
R/O RAMPUR TALUK AND
DIST. BAGALKOT - 575 101
...RESPONDENTS
(BY SRI M M PATIL, ADVOCATE FOR R1;
SRI MALLIKARJUN B HIREMATH, ADVOCATE FOR R3 & R4
SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC TO SET ASIDE THE JUDGMENT AND DECREE
DATED 23.12.2006, PASSED IN O.S.NO.210/2003 BY THE I
ADDITIONAL CIVIL JUDGE (SR. DN.), BAGALKOT AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This is an appeal filed by the appellant/defendant No.1 challenging the judgment and decree passed in O.S.No.210/2003 dated 23.12.2006 on the file of I Additional Civil Judge (Sr. Dn.), Bagalkot.
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
3. The factual matrix of the case of the plaintiffs before the Trial Court is that the deceased Yamanappa is the -3- RFA No. 1805 of 2007 divided brother of plaintiffs and defendant Nos.2 and 3 and in view of the partition between them, the suit lands were allotted to the deceased Yamanapppa and mutation effected in M.E.No.998 and 999. The Yamanappa died about two months back and he had a son by name Bhimappa but the said Bhimappa has left unknown and his whereabouts are not known since more than 8 years and he is unheard since then and not seen by any of the persons who have reasonable to see him. It is also contented that the Yamanappa met with a civil death and he is no more. After the death, when the plaintiffs wanted to inform the revenue authorities to mutate the names of plaintiffs, defendant Nos.2 and 3 as the nearest heirs of the deceased Yamanappa came with surprising contention that the Yamanappa has adopted the defendant No.1 as his adopted son and therefore, the name of defendant No.1 should be mutated in the revenue records. Defendant No.1 is the natural son of defendant No.2. Defendant No.1 has not been adopted by deceased Yamanappa and no adoption ceremony had taken place. There is no giving and taking of any boy in the adoption. No documents for adoption have been executed by Yamanappa but it appears that defendant Nos.1 and 2 have concocted the document to contend that the deceased Yamanappa has -4- RFA No. 1805 of 2007 executed an adoption deed. Since Yamanappa had a natural son, there is no question of adoption by him and these facts goes to show that there is no adoption of defendant No.1 and that is a concocted document. Inspite of plaintiffs have requested to give up their false contention and to effect partition in the suit land and allot the plaintiffs 1/4th share each, the defendants went on postponing the same on one or other reasons. Hence, the suit is filed.
4. In pursuance of the suit summons, the defendants have appeared and filed the written statement admitting the partition between the brothers. However, it is contended that Yamanappa had a son by name Bhimappa and his whereabouts are not known. But it is contended that the allegations made in the plaint that when they approached the revenue authorities, came to know about the creation of document and the averment that no practice of giving and taking taken place and no adoption deed was executed by him is absolutely false. It is contended that the Yamanappa's son by name Bhimappa has left the house about 20 years back and the said Yamanappa during his life time tried his level best to know his whereabouts and he could not traced out and thereafter, the said -5- RFA No. 1805 of 2007 Yamanappa took defendant No.1 as his adopted son and all ceremonies regarding giving and taking and all other customs regarding adoption have been duly performed and thereafter the adoption deed has also took place on 03.06.1993 and a photo programme has also been performed regarding adoption of defendant No.1 by deceased Yamanappa and during the lifetime of said Yamanappa the same has not been challenged and during the life time of said Yamanappa, defendant No.1 has looked after the affairs of the said Yamanappa as his natural son and Yamanappa was in possession of the suit property along with his adopted son and after his demise, defendant No.1 as his legal heir is in possession and enjoyment of the suit property. Hence, prays to dismiss the petition.
5. Based on the pleadings of the parties, the Trial Court has framed the following:
ISSUES (1) Whether the plaintiffs prove that they and defendant Nos.2 and 3 are the nearest heirs of deceased Yamanappa?
(2) Whether the plaintiffs prove that they are entitled to 1/4th share each in the suit schedule 'B' properties?-6- RFA No. 1805 of 2007
(3) Whether the defendants prove that defendant No.1 is the adopted son of deceased Yamanappa?
(4) Whether the plaintiffs are entitled for relief as prayed?
(5) To what order or decree?
6. In order to prove the case of the plaintiffs, plaintiff No.1 got examined as PW1 and examined two witnesses as PW2 and 3 and got marked the document at Ex.P1 to P6 and on the other hand, defendant No.1 got examined himself as DW1 and also got examined four witnesses on his behalf as DW2 to DW5 and got marked the documents at Ex.D2 to D5. Ex.D1 is marked in the cross-examination of PW1. The Trial Court after considering both the oral and documentary evidence, answered Issue No.1 and 2 as affirmative and Issue No.3 as negative in coming to the conclusion that the defendants have not proved that defendant No.1 is the adopted son of deceased Yamanappa hence, granted the share in respect of the plaintiffs as sought. Hence, the present appeal is filed by defendant No.1 before this Court.
-7-RFA No. 1805 of 2007
7. The main contention of the appellant counsel before this Court is that the Trial Court has committed an error in not accepting the registered adoption deed dated 03.06.1993 only on the ground that certified copy is produced and not the original. The counsel would vehemently contend that the Trial Court has not invoked Section 16 of Hindu Adoptions and Maintenance Act, 1956 (for short 'the said Act') and erroneously comes to a conclusion that there are contradictions in the evidence of defendants' witnesses - DW3 to 5 regarding performing of customary ceremonies. The counsel also vehemently contend that the suit is filed in the year 2003 and not sought for any cancellation of adoption deed and in terms of Specific Relief Act, ought to have sought for the relief of cancellation of adoption deed. There is a statutory presumption under Section 16 of the said Act and the same is also not taken note of. The counsel would submit that the evidence of DW1 to 5 has not been rebutted and only taking a stray sentences of admission given by DW3 to 5 comes to the conclusion that the adoption has not been proved. The counsel vehemently contend that the Trial Court has committed an error in invoking Section 10(iv) of the said Act and the very approach of the Trial Court is erroneous and hence, it requires interference. -8- RFA No. 1805 of 2007
8. The counsel in support of his argument relied upon the judgment of the Apex Court in the case of KONDIBA RAMA PAPAL (DEAD) BY HIS HEIRS AND LRS AND OTHERS vs NARAYAN KONDIBA PAPAL reported in CIVIL LAPPEAL No.1515 (N) OF 1976 decided on 22.01.1991 and brought to notice of this Court paragraph 1 wherein discussed with regard to the taking of a person who is aged about 22 years whether there is any bar and Apex Court also considering Section 10(iv) comes to the conclusion that 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 child at any age. Once the custom is judicially recognized, it is not required to be independently proved in subsequent cases. The counsel referring to this judgment vehemently contend that the very approach of the Trial Court invoking Section 10(iv) of the Act is perverse. The counsel also relied upon the judgment of this Court passed in the case of SIDDEGOWDA vs MALLAMMA AND OTHERS DATED 20.01.2004 wherein also discussed with regard to the provisions of Section 10 of the Hindu Adoptions and Maintenance Act saves the cases of adoption of a person above the age of 15 if a custom to that effect is -9- RFA No. 1805 of 2007 prevalent in the community. The counsel referring to this judgment also would contend that when the custom permits, person who is aged more than 15 years also can be taken in adoption.
9. Per contra, the learned counsel for the respondents would vehemently contend that adoption has not been proved. The Trial Court has given definite finding that the very contention that there was an adoption has not been proved since the witnesses - DW3 categorically admitted that the adoption was took place in the Anjaneya temple and DW1 also categorically admits that in the document it is mentioned as the same was taken place in the house of the adoptive father and other witnesses have categorically admitted that they have not participated in the said ceremony and DW5 categorically admits that his signature was taken in his residence and he had not been to the Sub-Registrar office while registering the document and these are the material contradictions and the same is taken note by the Trial Court. The counsel also submits that in terms of Ex.D2, the age of DW1 is mentioned as 19 years and there is a bar under Section 10(iv) of the said Act and the same is also taken note by the Trial Court. The counsel would submit that
- 10 -
RFA No. 1805 of 2007 the principles laid in the judgments are not applicable to the case on hand and when there is no pleading and proof with regard to the custom permits to take a person who is aged more than 15 years and unless there is a pleading and proof with regard to the said fact, said citations are not applicable to the case on hand.
10. In support of his arguments, he relied upon the judgment of this Court in the case of B.Y.NARASIMHA PRASAD vs SMT. H.S.SARASWATHI reported in 2010(4) AIR KAR R 87 and brought to notice of this Court paragraph 26 wherein this Court discussed that the law is fairly well settled that custom cannot override express law. Custom has the effect of modifying the general personal law, but it does not override the statute law, unless it is expressly saved by it. Such custom must be ancient, uniform, peaceable continuous and compulsory in practice. Custom is not valid if it is illegal, immoral, unreasonable or opposed to public police. The counsel also relied upon the judgment of the Apex Court in the case of M. VANAJA vs M.SARLA DEVI (DEAD) reported in (2020) SCCR 613 and brought to notice of this Court paragraph 12 wherein the Apex Court held that the two
- 11 -
RFA No. 1805 of 2007 important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. Admittedly, there is no pleading in the plaint regarding the adoption is in accordance with the provisions of the Act and that apart, when the respondent who is the adoptive mother has categorically stated in her evidence that appellant was never adopted though he was merely brought up by her and her husband. The counsel also relied upon the judgment of RATANLAL @ BABULAL CHUNILAL SAMSUKA vs SUNDARABAI GOVARDHANDAS SAMSUKA (D) THROUGH LRS AND OTHERS reported in 2018 SAR (CIVIL) 168 wherein the Apex Court held in paragraph 18 with regard that the customs is concerned. The custom of adopting married sons in the community of the appellant. The only evidence, the appellant has adduced, is his own testimony and a word of a priest who had performed the ceremony. A general custom which the appellant intends to prove requires greater proof than the one appellant adduced before the Court. The counsel also relied upon the judgment of the Apex Court in the case of KISHORI LAL vs MT. CHALTIBAI reported in AIR 1959 SC 504 wherein it is held with regard to the evidence to
- 12 -
RFA No. 1805 of 2007 prove adoption. It is observed that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth.
11. Having heard the respective counsel for the parties and also on perusal of the materials on record, the points that would arise for consideration are:
(1) Whether the Trial Court has committed an error in accepting the case of the plaintiffs in answering Issue Nos.1 and 2 as affirmative and rejecting the case of the defendants in answering Issue No.3 as negative and whether it requires interference of this Court?
(2) What order?
Point No.1
12. Having heard the respective counsel for the parties and also on perusal of the materials on record it discloses that there is no dispute with regard to the relationship between the parties and Issue No.1 is framed with regard to the relationship
- 13 -
RFA No. 1805 of 2007 between the parties and when there is no dispute with regard to the relationship between the parties, I do not find any error committed by the Trial Court in coming to the conclusion that the plaintiffs and the defendant Nos.2 and 3 are the nearest heirs of deceased Yamanappa. But the only dispute is with regard to whether there was an adoption or not and also it is not in dispute that the suit property are fall to the share of the Yamanappa in the partition and according to the parties, there was a partition and also no dispute with regard to the partition which was taken place between the family in the year 1992. Now, the only main question before the Court is whether the adoption is proved or not. No doubt, the defendants have relied upon the document at Ex.D2 - adoption deed. Admittedly, the same is registered on 03.06.1993 but suit is filed subsequent to the death of the Yamanappa and in the plaint it is pleaded that he died two months back and hence, it is clear that he died in the year 2003 and the same is not disputed. The only material has to be examined by this Court that on re-appreciation of evidence since this Court being the First Appellate Court considered both the question of law and question of fact. Here is a main contention urged by the counsel appearing for the appellant that if customs permits, a
- 14 -
RFA No. 1805 of 2007 person can be taken as adopted son even more the age of 15 years and no doubt, the very proviso of Section 10(iv) of the Act stipulates the same and there is no dispute with regard to the provision of law and if customs permits, such a person can be taken.
13. The grounds before the Court is that whether the very adoption is proved or not and the defendants who claims that defendant No.1 is a adopted son, he himself examined as DW1 and he reiterates the averments of written statement in is evidence. On perusal of the evidence of DW1 and in the cross- examination, he admits that the adoption function was taken place at Rampur Anjaneya temple but he does not know the customs and rituals in taking datthakka in his caste. But he claims that in order to prepare the document of adoption deed, the natural parents and also the adopted parents have given the instructions. But he claims that the adoption deed was registered after 15 days of the adoption. But in the cross- examination, he admits that in the adoption deed it is mentioned that the ceremonies are held in the house and also he admits that the said Yamanappa was having a son but it is an admitted fact that whereabouts of his son is not known. The
- 15 -
RFA No. 1805 of 2007 defendant No.2 also examined as DW2 who is the photographer and he deposed that he took the said photograph in the studio and the evidence of DW2 will not comes to the aid of the contention of the defendants. The defendant Nos.3 to 5 are the witnesses in respect of identifying the photograph. DW3 identifies the photo and he claims that Yamanappa is present in the said photo. In the cross-examination, DW3 deposed that he never attended any ceremonies of Datthakka in respect of the custom and practice in Kuruba community and he has not seen any such ceremonies conducted by the Kuruba family but he claims that the talks were held 10 to 12 days prior to the registration of the document at Sub-Registrar office and he also claims that Datthakka was taken place at Rampura temple but in between the talk and Datthakka, no such ceremony was held and he also admits that Yamanappa was having a son.
14. DW4 also in his evidence deposed that the natural parents have voluntarily gave his son for adoption and ceremony was held and thereafter document was registered in the office of Sub-Registrar and he also signed the document. In the cross-examination, he admits that the ceremony was held at Bagalkot. But talks were held in the house at Rampura
- 16 -
RFA No. 1805 of 2007 and also he admits that the adoption deed was registered after 15 days. He also admits that when the talks were held in the house and in between, the document was registered at Bagalkot, but they have not joined together and except attending the Datthakka of Ramaswamy, he has not attended any Datthaka and in the said adoption deed, the formalities are not mentioned and he also not read the entire adoption deed.
15. The other witness is DW5. He also says that he participated in the ceremony and the same was discussed with regard to mention the same in the document and accordingly went to the Sub-Registrar office at Bagalkot and the document was registered. In the cross-examination also he admits that except attending the adoption ceremony of Ramaswamy, he never attended any adoption function and also he does not know about the customs prevailing in Kuruba community for adoption and he claims that ceremonies were conducted at Ramapura. But the adoption deed was written near the office of Tahsildar and he was not present at the time of preparation of the said document but his signature was taken in his village.
- 17 -
RFA No. 1805 of 2007
16. On re-appreciation of evidence of DW1 to 5, this Court has to look into the evidence of PW1. PW1 in his evidence in the form of affidavit reiterates the contents of the plaint. In the cross-examination a suggestion was made that ceremony was conducted while taking the adoption and the same was denied and a suggestion was made that documents was registered and the same is also denied. He admits that after the death of Yamanappa, an attempt was made to get it change the name in favour of DW1 and he says that he had objected the same and nothing is elicited from the mouth of PW1 with regard to the adoption is concerned.
17. Having taken note of both the oral and documentary evidence available on record it has to be noted that in the document at Ex.D2 it is mentioned that Yamanappa is not having any issues but the fact is that he was having a son by name Bhimappa but whereabouts of him is not known and the same is not mentioned in Ex.D2. It is also important to note that the age of DW1 at the time of adoption was 19 years and the same is admitted by DW1 in his cross-examination and also the same is emerged in the document at Ex.D2 and there is no dispute in this regard.
- 18 -
RFA No. 1805 of 2007
18. In order to prove the adoption, no doubt, the document is registered in the office of Sub-Registrar and the original adoption deed is not produced before the Trial Court but the secondary evidence i.e., the certified copy is produced before the Trial Court and no specific reason is assigned before the Trial Court in this regard. In order to prove the adoption also though the defendants relied upon the evidences of DW3 to 5 but their evidences not inspires the confidence of the Court with regard to very adoption is concerned. In the document it is mentioned that the adoption was taken place in the house but in the oral evidences of DW4 and 5 they claims that the same was taken place in Rampura and DW3 says that it was taken place at Anjaneya temple and hence, there are contradictions in the oral evidence as well as the documentary evidence and apart from that DW5 says that he has not been to the office of Sub-Registrar at the time of registration of the said document and his signature was taken in his village and DW4's evidence also not inspires the confidence of the Court.
19. Having taken note of all these contradictions from the mouth of DW3 to 5, the Trial Court has not believed the version of the defendants witnesses. The Trial Court in
- 19 -
RFA No. 1805 of 2007 paragraphs 14 and 15 taken note of the same. The defendants also took the contention that under Section 16 of the said Act, there is a presumption and presumption is rebuttable presumption and whether presumption is rebuttable or not is also the question and when the very document itself is not proved before the Court and the evidence of DW3 to 5 not inspires the confidence of the Court, the contention of the counsel for the appellant that the Court has to draw the presumption cannot be accepted. There must be a presumption and the said presumption is rebutable presumption and in the cross-examination, DW1 to 5 have effectively cross examined with regard to existence of the document of adoption in force. Considering the evidence elicited from the mouth of the defendants, DW1 who categorically admits that in the document it is mentioned that adoption was taken place in the house but in his oral evidence, he claims that adoption was taken place at Anjaneya temple and evidence of each witnesses are contrary to each other. When such being the case, the Trial Court has not committed any error coming to the conclusion that the very adoption itself has not proved and ceremony also not proved.
- 20 -
RFA No. 1805 of 2007
20. It is also important to note that the document was allegedly registered in the year 1993, the plaintiffs have categorically said in the plaint that immediately after the death of Yamanappa, dispute started between them and immediately they filed the suit for the relief of partition. When such being the case, I do not find any error committed by the Trial Court in coming to the conclusion that the defendants have not proved the very adoption and the same is not in terms of the customs in prevailing practice particularly in the said community and also witnesses who have been examined categorically says that except attending the said adoption function, they have not attended any other adoption in respect of Kuruba community.
21. The learned counsel for the appellant vehemently contended that when the customs prevails it can be taken adoption even if it aged more than 15 years. No doubt, the Apex Court also in the judgment KONDIBA RAMA PAPAL, it is held that if the customs prevails, the same can be permitted and the counsel would submit that in Bombay, the same is accepted and that is the observation from the Apex Court. But in the case on hand, I have already pointed out that the very adoption itself has not been proved and the evidence available
- 21 -
RFA No. 1805 of 2007 before the Court not inspires the confidence of the Court, under such circumstances, the said judgment is not applicable to the case on hand. The counsel also relied upon another judgment of SIDDEGOWDA of this Court and this Court also held that Section 10 of the Act says that in a case of adoption of a person above the age of 15 years, a custom to that effect is prevalent in the community. In the evidence available on record also no such material on record whether any such practice is available to take the person more than the age of 15 years. I have already pointed out that the very adoption has not been proved and the evidence of the witnesses i.e., DW3 to 5 not inspires the confidence of the Court and apart from that other witness i.e., DW2 who is the photographer has been examined and he says that he took the photo in the studio and not at the time of conducting any ceremony. Hence, I do not find any force in the contention of the appellant counsel.
22. The counsel appearing for the respondents also relied upon the judgments of the Apex Court and also judgment of this Court wherein also it is held that the customs should be in prevailing practice and it is necessary that the evidence to support it should be such that it is free from all suspicions of
- 22 -
RFA No. 1805 of 2007 fraud and so consistent and probable as to leave no occasion for doubting its truth and the Apex Court also held that the adoption results in changing the course of succession, depriving the rights of a person. When such being the material available on record, in the case on hand, when suspicion arising with regard to very proof and original adoption deed is also not produced before the Court is another circumstances of doubt arises before the Court and the Trial Court also given anxious consideration to both the oral and documentary evidence and hence, I do not find any force in the contention of the appellant counsel to comes to other conclusion that the Trial Court has committed an error in appreciating both the oral and documentary evidence. Hence, I answer the said point as negative.
23. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE SN