Karnataka High Court
Parvatevva W/O Karabasapa Sappali vs Basangouda A/F Malakappa Sappalli on 23 June, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No. 100560 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 100560 OF 2015
BETWEEN
1. SMT. PARVATEVVA W/O KARABASAPA SAPPALI
AGE:53 YEARS, OCC: HOUSE HOLD WORK,
2. MANJAPPA S/O KARABASAPPA SAPPALI
AGE:32 YEARS, OCC: SERVICE,
APPELLANT NO.1 AND 2 ARE
R/O: ALADAKATTI,
TQ: RANEBENNUR,
DIST: HAVERI-581115.
3. MANJAPPA BASAPPA CHALAGERI
AGE:43 YEARS, OCC: AGRI,
R/O: NITTUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANTS
Digitally (BY SRI. N P VIVEKMEHTA, ADVOCATE)
SUJATA signed by
SUBHASH SUJATA
PAMMAR SUBHASH
PAMMAR
AND
BASANGOUDA A/F MALAKAPPA SAPPALLI
AGE:33 YEARS, OCC: AGRI,
R/O: ALADAKATTI, TQ: RANEBENNUR,
NOW AT HIREMORAB, TQ: HIREKERUR,
DIST: HAVERI-581111.
...RESPONDENT
(BY SRI. AVINASH BANAKAR FOR C/R1, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DTD: 30.04.2015 PASSED IN
R.A.NO.40/2008 ON THE FILE OF THE II ADDITIONAL DISTRICT
JUDGE AT HAVERI (SITTING AT RANEBENNUR), ALLOWING THE
APPEAL, AND SETTING ASIDE THE JUDGMENT AND DECREE DTD:
11.03.2008 AND THE DECREE PASSED IN O.S.NO.57/2002 ON
THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN) AT
RANEBENNUR, DISMISSING THE SUIT FILED FOR DECLARATION.
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RSA No. 100560 of 2015
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
08.06.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
JUDGMENT
This appeal is filed under Section 100 of CPC, by defendants challenging the judgment and decree passed by II Additional District Judge, Haveri (sitting at Ranebennur) in RA No.40/2008 dated 30.04.2015 whereby the learned District Judge has reversed the finding given in OS No.57/2002 on the file of the Additional Civil Judge (Sr.Dn.), Ranebennur and decreed the suit.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. Brief facts of the case are as under:
This is a suit filed by the plaintiff seeking relief of declaration that sale deed executed in favour of defendants No.2 & 3 pertaining to suit schedule 1(A) & (B) properties are null and void and gift deed executed in favour of defendant no.2 pertaining to schedule 1(D) -3- RSA No. 100560 of 2015 property is null and void. Further, the plaintiff sought declaration that schedule (c) and (d) properties are jointly owned by the plaintiff and defendant no.1. The plaintiff has also sought injunction against defendant nos.2 and 3. After the death of original plaintiff, his legal heir has sought declaration that he is the adopted son of the deceased plaintiff. It is the case that the original plaintiff Malakappa Gurubasappa Sappali was the adoptive father of the present plaintiff no.1(a). Malakappa Gurubasappa Sappali had a wife by name Hanumavva, who has predeceased him. He had a son by name Karabasappa, who is dead about 8 years prior to filing of the suit. Defendant no.1 is the wife of Karabasappa and she is not having any issues. Defendant no.2 is the foster son of defendant no.1. As such, defendant no.2 was brought up by defendant no.1. It is the further assertion that defendant no.3 is the brother of defendant no.1 and defendant no.3 was looking after the agricultural operations of the plaintiff- Malakappa Gurubasappa Sappali. That plaintiff was having good faith in defendants, but, they have taken signatures on the white papers and also on other forms in good faith. The legal representative -4- RSA No. 100560 of 2015 of plaintiff has contended that the year 1995, the plaintiff has taken his brother's son Shivanandappa @ Shivanagouda Basanagouda Hosahullatti in adoption on 11.12.1995. It is also alleged that giving and taking ceremony was held and adoption deed registered on 12/07/2002 which is signed by the adoptive father, genetive father as well as genetive mother. It is asserted that suit properties are ancestral joint family properties and they belong to the plaintiff and defendant no.1.
Defendant no.2 by playing a fraud on the plaintiff has got executed sale deed and gift deed pertaining to schedule 1(D) property. It is alleged that by taking signatures of the plaintiff on blank papers, the mutation khata was changed pertaining to schedule 1(C) property and defendant no.2 do not get any title. That on 20.08.2001, plaintiff has suffered paralysis stroke and was bed ridden for a period of 5 to 6 months and he was not having knowledge about the fact and nature of transaction and taking advantage, defendant nos.2 and 3 in collusion with Sub-Registrar got registered fraudulent sale deed pertaining to schedule 1(A) property in favour of defendant no.2 and schedule 1(B) property in favour of -5- RSA No. 100560 of 2015 defendant no.3 on 03.09.2011. That the plaintiff had no necessity to sell the suit properties and there is no consideration passed. It is asserted that the suit properties are in joint possession of the plaintiff and defendant no.1 and defendant nos.2 and 3 does not acquire any right, title or interest and after the death of plaintiff- Malakappa, his adoptive son has acquired the right along with defendant no.1 Hence, the suit is filed seeking declaration and injunction relief as stated.
4. The defendants appeared and filed their written statements denying the plaint averments. It is denied that plaintiff no.1(a) is the adoptive son of the original plaintiff- Malakappa and further denied regarding adoption ceremony. It is also asserted that the original plaintiff is not having any issue and hence, defendants have succeeded to the properties by way of gift and sale deed and they have invested a huge amount to purchase the suit properties under the registered sale deed. It is alleged that the plaintiff-Malakappa was suffering from Paralysis stroke. The adoption deed was not executed by -6- RSA No. 100560 of 2015 the deceased and it is a fabricated document. Hence, defendants have disputed the claim of plaintiff.
5. The Trial Court on the basis of the rival pleadings has framed the following issues:-
Issues "1) Whether plaintiff proves that he is the adopted son of deceased plaintiff Malakappa ?
2) Whether plaintiff proves that, deft.3 got executed gift deed dtd.23/11/88 in his favour in respect of schedule 1(D) property by fraud and misrepresentation upon deceased plaintiff Malakappa ?
3) Whether plaintiff further proves that deft.1 and 3 in collusion with each other and by misrepresenting the deceased plaintiff Malakappa obtained his signature on the white paper and got mutated the schedule 1(C) property in the name of deft.1 ?
4) Whether plaintiff proves that deft.2 & 3 got executed bogus sale deed in their name in respect of schedule 1(A) (1) (2) (3) and 1(B) property by taking undue advantage of the ill health of the deceased plaintiff Malakappa and by committing fraud upon him ?
5) Whether defendants prove that deft.2 is the adopted son of deft.1 ?
6) whether plaintiff is entitled for the relief prayed for
7) what order or decree ?-7-
RSA No. 100560 of 2015
ADDL.ISSUE
1) Whether plaintiff proves that he was adopted by deceased Malakappa Gurubasappa Sappalli as per rites and customs of her religion and adoption deed is registered on 12/7/02 ?"
6. The trial Court has answered issue nos.1, 2 and 5 in the affirmative while issue nos.3, 4, 6 and additional issue no.1 were answered in the negative and ultimately, dismissed the suit.
7. Being aggrieved by this judgment and decree, plaintiff filed RA no.40/2008 on the file of the II Additional District Judge at Haveri (sitting at Ranebennur) and the learned District Judge after re-appreciating the oral as well as documentary evidence, has allowed the regular appeal by setting aside the judgment and decree of trial Court and decreed the suit. Being aggrieved by this finding of the First Appellate Court, this appeal came to be filed.
8. Heard the arguments advanced by the learned counsel for the appellant as well as respondent. Perused records.
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9. The learned counsel for the appellant would contend that Malakappa is the father-in-law of defendant no.1 and admitted that defendant no.2 is the foster son. It is also admitted that all along the properties were managed by Malakappa with the assistance of defendant no.3. The gift deed is in the year 1988 and it is a registered gift and now, a simple assertion is made regarding fraud and misrepresentation. But, the details of fraud and misrepresentation were not pleaded. None of the witnesses to the said documents were summoned and as on that date, Karabasappa was present. He did not dispute the gift. It is also alleged that the alleged adoption is in 1995, but, after filing the suit, the deed was registered and only certified copy is produced without laying foundation to lead secondary evidence. There is inconsistent evidence regarding where exactly adoption has taken place, whether in the temple or in the house and there is inconsistent evidence regarding adoption deed also. Admittedly, Malakappa was bed ridden in 2002 and how he went for registration of adoption is not at all forthcoming. Further he has invited the attention of the Court to the plaint pleadings filed by the original plaintiff -9- RSA No. 100560 of 2015 Malakappa, so called adopted father which was filed in the year 2002 and in the entire plaint, there is no whisper of adoption of so called adopted son Basanagouda. He would also contend that he would admit that the finding of the trial Court are inconsistent and does not give any proper meaning, but, the First Appellate Court did not appreciate these aspects. He would also assert that the plaintiff nowhere asserted that he stayed with Malakappa all along and he is recognized as adopted son of Malakappa. There are no material witnesses examined regarding adoption ceremony and original adoption deed is not produced. He would contend that the First Appellate Court has blindly accepted the evidence led by the plaintiff without appreciating the contradictions and admissions and conduct of the plaintiff including non pleading of adoption by deceased Malakappa when the suit is filed. He would further contend that there is no specific pleading regarding nullity of gift of 1988 and Malakappa was in sound state of mind and son was alive, but, the gift was not challenged. He would also contend that source of defendants to purchase the property is not challenged. Hence, he would asserted that the Lower Appellate Court has erroneously
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RSA No. 100560 of 2015accepted the claim of the plaintiff and inadvertently applied the presumption under Section 16 of Hindu Adoption and Maintenance Act though admittedly gift deed was registered after institution of the suit and decreeing the suit which has led to miscarriage of justice. Hence, he would seek for allowing the appeal.
10. Per contra, the learned counsel for respondent would contend that the execution of the adoption deed is proved by examining attesting witnesses and Sub- Registrar and there was no necessity to gift away the property as well as execution of the sale deed. He would also contend that in 2001, Malakappa was suffering from paralysis and hence, question of the executing the sale deed does not arise at all and fraud and misrepresentation are proved and hence, he would contend that the First Appellate Court has rightly appreciated the oral and documentary evidence and decreed the suit. Hence, he would seek for rejection of the appeal.
11. This Court by order dated 05.04.2016 has framed the following substantial question of law:-
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"Whether the adoption of Basavangowda is valid in law when defendant No.2 was brought up as fostered son in view of Section 11(i) of the Hindu Adoptions and Maintenance Act, 1956."
12. There is no serious dispute of the fact that the original plaintiff Malakappa was having a son Karabasappa and defendant no.1 is the wife of Karabassppa. It is also evident from the respective pleadings that Karabasappa died in 1990 and he had no children through defendant no.1. It is also admitted fact that defendant no.2 is the Foster son of defendant no.1. Further defendant no.3 is admittedly the brother of defendant no.1 and he was assisting the Malakapa as well as the his son Karabasappa in management of the family properties as Karapbasappa was not having good health. Interestingly, Malakappa has filed the suit for declaration that the sale deed as well as gift deed are null and void. There is some vague pleading in the plaint as to how the fraud was played. But, there is no specific pleadings in the plaint regarding the fraud and misrepresentation.
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RSA No. 100560 of 2015
13. The gift was admittedly done in 1988. Ex.P22 is certified copy of the gift deed. It is a registered deed and admittedly, Karabasappa, i.e. the son of Malakappa was alive when the gift was made. Though the original plaintiff tried to challenge the gift of 1988 in favour of defendant no.2, absolutely no evidence is led as to in what way fraud and misrepresentation was played except bald allegation in the plaint.
14. However, at the same time, it is also important to note here that plaintiff no.1(a) claims to be so called adopted son of original plaintiff Malakappa and claims to have adopted in 1995. The gift was executed in 1988 itself. Admittedly, PW1 was the minor then and he was not residing with Malakappa. He had no specific knowledge regarding the gift and as such, there is absolutely no evidence regarding the gift to the effect that gift was obtained by playing fraud and misrepresentation. The First Appellate Court has not at all appreciated this aspect and in a mechanical way decreed the suit. The First Appellate Court interestingly framed the issues regarding bonafide purchaser pertaining to defendant
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RSA No. 100560 of 2015nos.2 and 3 which is not the case put forwarded by defendant nos.2 and 3. Though issue no.2 is framed by the trial Court regarding validity of gift, no findings were given. The trial Court has given the finding in the affirmative. But, what is the base for the said finding is not at all forthcoming. Admittedly, none of the attesting witnesses to the gift were examined by the plaintiff. Even the gift was not challenged by the Karabasappa and is a registered deed. On the basis of the gift, name of defendant no.2 came to be mutated and admittedly defendant no.2 was residing with Malakappa, his son Karabasappa and defendant no.1. It is also admitted fact that he was brought up by Malakappa and defendant no.1 as a foster son. Under such circumstances, absolutely, there is no piece of evidence to prove that gift was obtained by playing fraud or misrepresentation. In the absence of any detail material pleadings and evidence in this regard, only on the basis of hearsay evidence of PW1, the said contention cannot be accepted as PW1 was not competent person to depose this aspect as he was a minor in 1988 and according to him, his adoption itself is in
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RSA No. 100560 of 20151995. Hence, both the Courts have erred in holding that gift deed is null and void.
15. Defendant no.1 claims that other contention of plaintiff no.1(a) that he is adopted by Malakappa and adoption ceremony was held on 11.12.1995. PW1 has deposed to the said fact and admittedly, he was aged more than 15 years at the time of adoption. However, it is recognized custom in Bombay State that a major son can taken in adoption. When the custom is recognized and declared, it is not required to be proved. Hence, the arguments in this regard have no relevancy.
16. However, PW1 is required to prove his adoption. PW1 in his evidence claims that both his adoptive parents were present when he was adopted and adoption was held in the house of Malakappa. If that is so, when wife of Malakappa has predeceased him long back prior to 1995 itself, then question of she being present at the time of adoption does not arise at all. Apart from that, there is no explanation as to when defendant no.2 is all along brought up as a foster son, what was the
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RSA No. 100560 of 2015need for adoption. Interestingly, to prove the adoption, PW3 was examined and PW2 is the genetive father of PW1. Admittedly, he is interested and he deposed regarding date of adoption. However, PW3 being an witness to adoption deed and also claims that he was present at the time of adoption. But, he claims that adoption has taken place in a temple while all along it is the case made out that adoption was held in the house of Malakappa. These two stands are inconsistent and contrary. Further admittedly, defendant no.1 and defendant no.3 were residing with Malakappa which is undisputed fact. None of the witnesses whisper regarding presence of defendant Nos.1 to 3. Hence, the evidence of PWs.1 to 3 regarding adoption is not trustworthy to prove the factum of adoption.
17. PW1 has placed reliance on adoption deed which is marked at Ex.P10. On perusal of Ex.P10, it is evident that the adoption came to be registered on 12.07.2002 and the recitals of the adoption disclose that Malakappa has brought up PW1 all along from child hood. Interestingly, Malakappa in his original plaint, nowhere
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RSA No. 100560 of 2015asserted this aspect at all. Even plaint is completely silent regarding adoption. If at all adoption has taken place in 1995, in the plaint filed in 2002 Malakappa ought to have referred this aspect, but, that was also not done. Apart from that, PW2 is said to have given PW1 in adoption and admittedly, PW2 is the father of PW1. There is no evidence to show that they are having other son and this aspect is neither pleaded nor deposed by any of the witnesses. Interestingly, adoption deed was registered on 12.07.2002 and the suit itself is filed by Malakappa on 24.06.2002. The deed was registered subsequent to filing the suit and all along it is alleged that Malakappa was suffering from paralysis. If that was the case, how Malakappa executed the registered adoption deed by visiting the Sub-Registrar office is not at all forthcoming. According to the plaintiff himself, he was bed ridden six months prior to his death.
18. The plaintiff has placed reliance on the evidence of PW4 who is a Sub-Registrar. But, PW4 has simply deposed regarding registration and he did not specify as to who has endorsed regarding the identity of the person
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RSA No. 100560 of 2015who executed. Interestingly, the plaintiff has not produced original adoption deed and only a certified copy is produced. The presumption under Section 16 of Hindu Adoption and Maintenance Act cannot be drawn since original deed was not produced and it is registered subsequent to filing of the suit. Further, regarding adoption when Malakappa had filed a suit he did not whisper anything. Hence, presumption under Section 16 of said Act which is a rebuttal presumption stands rebutted.
19. Regarding factum of adoption, there is inconsistent evidence led by the plaintiff. There is no reference in adoption deed also regarding foster son and interestingly, in the adoption deed, it is asserted that Malakappa does not have any male or female issues. But, it is admitted that defendant no.1 is daughter-in-law of Malakappa and there is no reference of defendant no.1 or defendant no.2 in the adoption deed. Even Karabasappa was admittedly the son of Malakappa and in adoption deed, it is asserted that Malakappa had no issues. Further, interestingly, PW3 himself has admitted that he
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RSA No. 100560 of 2015has purchased stamp for drafting the adoption deed and he gave instructions. Adoption deed is said to have been executed by Malakappa and question of PW3 purchasing the stamp and giving instructions does not arise at all. Hence, it is evident that Malakappa is not the author of adoption deed.
20. As observed above, the certified copy of the adoption deed is produced which is at Ex.P10. The original is not produced and without laying foundation, secondary evidence is placed for proving the adoption which is also not permissible.
21. Even otherwise the adoption deed whether it is primary or secondary document has no relevancy since it is registered subsequent to filing of the suit and presumption cannot be drawn. Apart from that, the admitted thumb marks of the Malakappa are available on the plaint. Had the oral adoption deed made available, then admitted thumb mark of Malakappa would have been compared with thumb mark on adoption deed. But, the original adoption deed is withheld and evidence of PW4 will
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RSA No. 100560 of 2015not assist plaintiff in this regard. It is all along contended that original adoption deed was sent to the house of Malakappa by registered post and it was received by defendant no.1. There is no evidence to show that defendant no.1 has received the original adoption deed and further when PW1 is residing with Malakappa in his house, question of some other person receiving the same does not arise at all and it could have received by him. Even he did not explain the absence of defendant nos.1 to 3 during the course of adoption. All these facts and circumstance, establish that the alleged adoption is a cock and bull story created in order to end up the properties of Malakappa since he had no issues and defendant no.1 was being daughter-in-law did not have any issues. The intention was to see that defendant no.2 being foster son should not get any property.
22. Apart from that, in the adoption deed it is asserted that PW1 all along residing with Malakappa. In that event, there should have certain documents to show that PW1 was all along residing with Malakappa. But no piece of document is forthcoming to show that PW1 was
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RSA No. 100560 of 2015staying with Malakappa. Even no evidence is placed to show that he was recognised as adopted son by the society at any point of time. The ration card or voters list etc. were not placed on record to show this aspect. Nothing prevents PW1 from producing any material documents in the form of ration card or voter list to show that he was treated as adopted son and he was staying with Malakappa. The evidence of PW3 and PW4 does not assist PW1 in proving his adoption. All along it is asserted that Malakappa was suffering from paralysis, but, how he executed adoption deed is not at all forthcoming. Instead of original deed, certified copy is produced and even otherwise to prove thumb mark on the adoption deed, the original register of registration of the document from the Sub-Registrar office could have been summoned, wherein the thumb signatures were obtained and that could have been compared with admitted thumb marks of the Malakappa, but, no such attempt is also made by the plaintiff. Apart from that, when defendant no.2 is already treated as an adopted son/foster son, what was the need for taking adoption not forthcoming and there is no reference of the same in Ex.P10 also. All along it is
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RSA No. 100560 of 2015admitted that defendant no.2 is a foster son. Much arguments have been advanced by the learned counsel for the respondent that there was no necessity of gift, but, gift cannot be executed for any consideration and it is only out of love and affection and admittedly, defendant no.2 was all along brought up as foster son. Hence, looking to these facts and circumstances, the adoption itself is not established by PW1 and if he fails to prove the adoption, question of he challenging the sale deed or gift deed does not arise at all. Further, all along it is alleged that the sale deeds obtained in favour of defendant nos.2 and 3 were by playing fraud and misrepresentation. If that is the case, if PW1 claims to be an adopted son and all along residing with deceased Malakappa, what he was doing when the fraud and misrepresentation was played and when Malakappa was taken to Sub-Registrar office is not at all forthcoming. There is no explanation as to what he was doing when the sale deed was registered and in a mechanical way, it is asserted that the sale deed was executed by playing fraud and misrepresentation. But, when he disputed his presence, then how can he dispute the sale deed is not at all forthcoming.
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RSA No. 100560 of 2015
23. The First Appellate Court has failed to consider any of these aspects and only on the basis of Section 16 of Hindu Adoption and Maintenance Act in view of certified copy of the adoption deed, accepted it as gospel truth without appreciating and without considering the fact that Malakappa did not whisper regarding adoption in his plaint itself, though the adoption is said to have taken place 7 years earlier to filing the suit. The learned District Judge only on the basis of adoption has held that the gift deed and sale deed were void without considering how fraud and misrepresentation was played and without there being any specific pleadings as well as evidence. Hence, the entire approach of the learned District Judge is erroneous.
24. The learned counsel for respondent has placed reliance on the decision reported in (1991) 2 SCC 218 (Kondiba Rama Papal @ Shirke (Dead) By his Heirs and Lrs. And Another Vs. Narayan Kondiba Papal, which is in respect of adoption of a child more than 15 years in Bombay State which is not under dispute. On this point itself he further placed reliance on the decision reported in ILR 2007 KAR 4381 (Channabasappa A/F
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RSA No. 100560 of 2015Muppayya Vs. Veerayya Ulavayya Hiremath and Others). However, the principles enunciated in the above said decision in Channabasappa case will not come to the assistance of the of PW1 since presumption under Section 16 cannot be drawn in this case for the reasons referred supra as original adoption deed is not produced and the adoption deed said to have been executed and registered after 7 years of the alleged adoption and after filing the suit.
25. Looking to these facts and circumstances, the First Appellate Court has erroneously decreed the suit by reversing the judgment and decree of the trial Court and hence, the appeal needs to be allowed. Though the substantial question of law is not properly framed, but, the substantial question is answered in favour of the appellants for the reason stated supra and no reference was made regarding foster son and factum of adoption itself is not proved.
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RSA No. 100560 of 2015
26. Looking to these facts and circumstances, appeal needs to be allowed. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment and decree passed by the II Additional District Judge at Haveri (sitting at Ranebennur) in RA No.40/2008 dated 30.04.2015 is set aside.
The suit of the plaintiff in OS No.57/2002 on the file of the Additional Civil Judge (Sr.Dn.), Ranebennur stands dismissed in total Under the circumstances, there is no order as to costs in this appeal.
Sd/-
JUDGE Vmb