Karnataka High Court
Sharanayya vs Shekharayya on 17 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWA D BENCH
DATED THIS THE 1 7 T H DAY OF JU NE, 2020
B EFORE
THE HON'B LE MR. JU STICE SACHIN SHANKAR MAGADUM
R.S.A .N O.100195/2020 (DEC/IN J)
BETWEEN :
SHARANAYY A
S/O KALLAYYA HIR EMATH,
AGE : 44 YEARS,
OCC: AGRICULTU RE,
R/O MANNERAL,
TALUK: KUSHTAGI,
DIST: KOPPAL, PIN : 583277.
... APPELLANT
(B Y SRI SHRIVARA J P.MUDHOL, ADVOCAT E.)
AN D :
SHEKHARAY YA
S/O VIRUPAKSHAY YA HIREMATH,
SINCE DECEASED BY HIS LRS.
1. SHIVAYYA
S/O SHEKHARAYYA HIREMATH,
AGE : 33 YEARS,
OCC: AGRICULTU RE,
R/O MANNERAL,
TALUK : KU SHT AGI,
DIST; KOPPAL.
NOW AT AMARAVATHI,
TALUK: HU NAGUND,
2
DIST: B AGALKOT , PIN : 587 118.
2. MAHESH
S/O SHEKHARAYYA HIREMATH,
AGE : 28 YEARS,
OCC: AGRICULTU RE,
R/O MANNERAL,
TALUK : KU SHT AGI,
DIST; KOPPAL.
NOW AT AMARAVATHI,
TALUK: HU NAGUND,
DIST: B AGALKOT , PIN : 587 118.
3. SANGANAB ASAY YA
S/O SANGAYYA HIREMATH,
AGE : 60 YEARS,
OCC: AGRICULTU RE,
R/O MANNERAL,
TALUK : KU SHT AGI,
DIST; KOPPAL, PIN 583277
... RESPONDENTS
THIS REGULAR SECOND APPEA L IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PR OCEDURE
AGAINST T HE JUDGMENT AND DECREE DAT ED
20. 12.2019 PASS ED IN R.A.NO.109/2015 ON THE FIL E
OF THE SENIOR CIVIL JUDGE, KUSHTAGI, D ISMISS ING
THE APPEA L AN D MODIFY ING T HE JU DGMENT A ND
DECREE DAT ED 16.09.2015 PASSED IN O.S.NO.68/2007
ON THE FIL E OF THE CIVIL J UDGE AND JMFC, KU SHT AG I
DISMISS ING T HE SUIT FILED FOR DECLARAT ION A ND
INJU NCTION.
THIS AP PEAL COMING ON FOR AD MISSION, T HIS
DAY, THE COU RT DEL IVERED THE F OLLOW ING:
3
: JUDGMENT :
The top noted second appeal is filed by the defendant questioning the judgment and decree dated 20.12.2019 passed in R.A.No.109/2015 confirming the judgment and decree dated 16.09.2015 passed in O.S.No.68/2007.
2. The facts leading to this second appeal are as under:
The father of respondent Nos.1 & 2 namely Shekharayya filed O.S.No.68/2007 for declaration and injunction by specifically contending that he is the sole heir of late Shivagangavva and her son Mahantayya and as such he has acquired valid right and title over the suit schedule properties and consequently prayed for relief of injunction restraining the present appellant/defendant from interfering with his possession and enjoyment over the suit properties. The original plaintiff Shekharayya specifically averred in the plaint that after death of Shivagangavva and Mahantayya, he 4 applied for change in Katha. The said varadhi was objected by present appellant/defendant. Basing this as a cause of action, the present suit in O.S.No.68/2007 is filed by the father of respondent Nos.1 and 2 namely Shekharayya. The original plaintiff Shekharayya specifically averred in the plaint that the present appellant/defendant is stranger to the family of the plaintiff. Original Plaintiff also disputed the status of the present appellant/defendant as adopted son.
3. On receipt of the summons, the present appellant/defendant contested the proceedings by filing written statement. The present appellant admitted that the propositus Sanganabasayya was the erstwhile owner of all the suit schedule properties. However, the claim of plaintiff i.e., he is the sole surviving heir of Shivagangavva and Mahantayya was seriously disputed by present appellant/defendant. A specific contention was taken in the written statement that the propositus 5 Sanganabasayya had three sons and one daughter by name Shankaravva. Since Kallayya and Shivagangavva had no issues, they adopted Mahantayya.
4. The present appellant further contended that Mahantayya who is the adopted son of Shivagangavva died issueless and this compelled Shivagangavva to take present the appellant in adoption. The appellant/defendant also further contended that his status is admitted by Shivagangavva in a compromise decree passed in O.S.No.124/1992.
5. The Trial Court based on the rival contentions formulated the following issues.
1. Whether the plaintiffs prove that, they are sole heirs of late Shivagangavva and her son mahantayya?
2. Whether the defendant proves that, he is the adopted son of said Shivagangavva?
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3. Whether the defendant proves that, suit is bad for non-joinder of necessary parties as contended at para-8 of the written statement?
4. Whether the defendant proves that, suit property's value was rupees four lakh and more and this court has no pecuniary jurisdiction?
5. Whether the defendant proves that, no partition was taken place between original owners?
6. Whether the defendant proves that, suit is bad for non-joinder of other properties as contended at para-9 of the written statement?
7. Whether the defendants prove that, suit in the present from is not maintainable?
8. Whether the plaintiffs are entitled to the relief sought for?
9. What order or decree?
6. The respondents/plaintiffs led in oral evidence and to substantiate their case, examined 7 plaintiff No.1A as PW.1 and relied on the documentary evidence at Ex.P.1 to P.7. The present appellant in support of his contention examined himself as DW.1 and by way of rebuttal evidence relied on Ex.D.1 to D.6. Ex.D.3 is the certified copy of the compromise arrived in O.S.No.124/1992.
7. The Trial Court on appreciation of oral and documentary evidence on record rejected the relief of declaration and by moulding the relief granted 1/3 share to respondent-plaintiff by holding that they have failed to establish that they are the only Class-I heirs of late Shivagangavva and her son Mahantayya. Insofar as the contention of present appellant i.e., adopted son of said Shivagangavva is concerned, it was also answered in the negative.
8. The Trial Court while answering issue No.2 has recorded a finding that the appellant has failed to establish factum of adoption. The Trial 8 Court has held that in the absence of deed of adoption and ceremony indicating physical act of giving and taking, the appellant cannot claim to be the adopted son of Shivagangavva, by relying on a compromise decree, wherein Shivagangavva has admitted that the present appellant is her adopted son. The Trial Court has also drawn an adverse inference against the present appellant for having failed to examine his genetive mother Parvatevva who was very much alive when evidence was recorded.
9. The Trial Court has also taken judicial note of material fact that the defendant is identified by two separate names under two separate documents as per Ex.D.6(a) and Ex.D.7(a). Relying on these documents, the Trial Court has doubted the alleged adoption set up by the appellant.
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10. Being aggrieved by the judgment and decree insofar as finding recorded on Issue No.2, the present appellant preferred R.A.No.109/2015.
11. The First Appellate Court on re- appreciation of oral and documentary evidence on record insofar issue of adoption of appellant/ defendant is concerned, has concurred with the reasonings assigned by the Trial Court. The First Appellate Court on re-appreciation has recorded a finding that the appellant has failed to prove the factum of adoption. The First Appellate Court has also taken a view that merely because compromise decree was passed in view of consent of defendant in O.S.No.124/1992, that would not establish and prove the valid adoption of appellant by Shivagangavva. The First Appellate Court on re- appreciation of oral and documentary evidence has also taken note of Ex.D3 wherein the age of the defendant is mentioned as 16 years and thereby Appellate Court has expressed doubt in regard to 10 valid adoption of appellant. On these set of findings, on re-appreciation of oral and documentary evidence on record, the Appellate Court has dismissed the appeal and thereby concurred with the reasons assigned by the Trial Court on Issue No.2.
12. The appellant being aggrieved by the judgment and decree of the Courts below insofar as holding that the appellant has failed to establish that he is the adopted son of Shivagangavva is before this Court.
13. Learned counsel appearing for the appellant would vehemently argue and contend before this Court that the findings of the Courts below that appellant has failed to prove that he is the adopted son of Shivagangavva is perverse, palpably erroneous and same suffers from serious infirmities. He would vehemently argue and contend before this Court that when Shivagangavva has admitted in an unequivocal 11 terms that the appellant is the adopted son as it is evident from the compromise decree passed in O.S.No.124/1992, both the Courts have erred in holding that, the factum the adoption is not established by the appellant.
14. In this background he would submit to this Court that the finding of the Courts below on Issue No.2 would give rise to substantial question of law. He would submit to this Court that when the compromise decreed arrived at between the appellant and Shivagangavva indicates that the appellant was taken in adoption by Shivagangavva, both the Courts ought to have held that the appellant is the adopted son of Shivagangavva and consequently Issue No.2 ought to have been answered in the affirmative.
15. Heard learned counsel for the appellant and examined the reasonings assigned by the Courts below on issue No.2.
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16. The appellant has relied on a compromise decree passed in O.S.No.124/1992 as per Ex.D.3. The parties have agreed to amicably settle the matter and in the said suit Shivagangavva who was arrayed as defendant has admitted that the present appellant is her adopted son. The appellant has not at all furnished the details in regard to factum of adoption.
17. As on 1992, the age of the appellant/defendant is shown as 16 years. This would necessarily indicate that appellant was taken in adoption after the commencement of the Hindu Adoptions & Maintenance Act, 1956. As per above said Act, any adoption has to be evidenced by way of a adoption deed. Further consequent to codification of Hindu Law, the essential ceremony of giving and taking in adoption of a child is required to be reduced in writing. For the purpose of better understanding Section 11(vi) of the 13 Hindu Adoptions & Maintenance Act, 1956 is culled out as under:
"11. Other conditions for a valid adoption.- In every adoption, the following conditions must be complied with:-
(i) xxxxx
(ii) xxxxx
(iii) Xxxxx
(iv) xxxxx
(v) xxxxx
(vi) the child to be adopted must
be actually given and taken in
adoption by the parents or
guardian concerned or under
their authority with intent to
transfer the child from the
family of its birth or in the
case of an abandoned child or
child whose parentage is not
known, from the place or
family where it has been
brought up to the family of its
adoption:"
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18. On perusal of the above said section, it is clearly evident that Section 11 of the Act mandates that, a child to be adopted must be actually given in and taken in adoption by the parents. Intention to transfer the child from the family of his birth can be gathered only if there is a ceremony of giving and taking. So, even if, the compromise decree in O.S.No.124/1992 is taken into consideration, the only factum of taking in adoption by Shivagangavva can be gathered. But whether the genetive parents had an intention to give appellant in adoption is missing in the compromise. Clause (vi) to Section 11 of the Hindu Adoptions & Maintenance Act, 1956 contemplates in an expressed terms that there must be actually giving and taking of the child with intent to transfer the child from the family of its birth to the family of its adoption. The physical act of giving and receiving was absolutely necessary for the validity of an adoption, even before codification of the Hindu Law and the 15 position under the Act is also identical and there has to be some overt-act to signify delivery of child to one family to another.
19. On perusal of compromise decree at Ex.D.3, it indicates the factum of taking the child by the adoptive mother Shivagangavva. This Act of taking is not sufficient to complete the process of adoption. The act of taking has to be necessarily preceded by act of 'actual giving' by the genetive parents to complete the process of adoption and after commencement of the Hindu Adoptions & Maintenance Act, 1956, the process of adoption needs to be reduced in writing. Since the ingredients of clause (vi) to Section 11 of the Hindu Adoptions & Maintenance Act, 1956 are not complied with, the compromise decree under which the appellant is declared to be the adopted son cannot be looked into since it is a void document.16
20. Further the adoption deed needs to be engrossed on stamp of Rs.100 as per Article 3 of Karnataka Stamp Act, 1957. Both the Courts have drawn an inference against the appellant/defendant for having failed to examine his genetive mother namely Parvatavva who was very much alive when the suit was pending.
21. The claim of the appellant that his status of being an adopted son is adjudicated as per the compromise decree passed in O.S.no.124/1992 needs to be examined in terms of Section 5 of the Act. Section 5 is corollary to section 4 of the Act. For better understanding, Section 5 of the Act is culled out as under:
"5.. Adoptions to be regulated by this Chapter.- (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provision shall be void.17
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth."
Sub-Section (1) of Section 5 of the Act propounds two propositions, they are :
i) All adoption made by Hindu must be in conformity with the provisions of the Act.
ii) Any adoption made in contravention of provision of the Act shall void.
22. On bare reading of the above said sections it clearly indicates that the compromise decree insofar as declaring that appellant is the adopted son of Shivagangavva is void. It is well established proposition of law that no consequences ensue a void transaction. A void transaction does not affect the respective possession or status of the parties. Sub-Section 2 18 of Section 5 by way of abundant caution reiterates this proposition it lays down as :
a) A void adoption does not create any right or relationship in adoptive family.
b) A void adoption does not lead to
destruction of any right or
relationship existing before the
adoption.
23. This clearly demonstrate that Section 5 lays down that after the coming in to force of the Act, all adoptions among the Hindus will be regulated by the Act and since the compromise decree is in violation of Section 5 of the Act , the claim of the appellant that he is an adopted son cannot be accepted and since the adoption is void, it would not create any rights in favour of appellant in the adoptive family as adopted son.
24. Since compromise decree does not satisfy ingredients of Section 11(vi) of the Hindu Adoptions & Maintenance Act, 1956 and Article 3 19 of the Karnataka Stamp Act, 1957 and since compromise decree as per Ex.D.3 is in contravention of Section 5 of the Act, this Court is of the view that, the concurrent finding recorded by the Courts below on issue No.2, wherein both the Courts have held that the appellant is not an adopted son of Shivagangavva is in accordance with law and does not suffer from any infirmities.
Substantial question of law raised by learned counsel for the appellant in the top noted second appeal cannot be considered in the light of observations made above. Consequently, second appeal fails. Accordingly appeal is dismissed.
No order as to costs.
Sd/-
JUDGE EM/-