Karnataka High Court
Naganagouda Adoptive Father vs Smt Nagavva W/O Channappa Kalageri on 27 March, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27th DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RFA No.1871/2007 (DEC) c/w
R.F.A. Cr. Ob. No.6/2008
IN R.F.A. No. 1871/2007
BETWEEN:
1. NAGANAGOUDA ADOPTIVE FATHER,
SRI BASANAGOUDA D. PATIL,
AGE: MAJOR, OCCUPATION: AGRICULTURE,
R/O KANNINAYAKANAKOPPA,
TALUK: KALGHATGI, DIST.: DHARWAD.
2. SMT. FAKIRAVVA SHIVANNAGOUDA PATIL,
AGE: MAJOR, OCCUPATION: AGRICULTURE,
R/O KANNINAYAKANAKOPPA,
TALUK: KALGHATGI, DIST.: DHARWAD.
- APPELLANTS
(BY SMT. G. MEERABAI, ADV.)
AND:
1. SMT NAGAVVA W/O CHANNAPPA KALAGERI,
AGE MAJOR, OCC:AGRICULTURE AND HOUSEHOLD,
DUTIES, R/O TUMARIKOPPA VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 581204.
2. SMT SHANTAVVA W/OO KALLAPPA HULAMANI,
AGE MAJOR OCC:AGRICULTURE AND HOUSEHOLD
DUTIES, R/O TARIHAL TALUK HUBLI,
DIST DHARWAD 580 024
3. SMT KALLAVVA W/O SHEKHAPPA GUNDAGOVI,
AGE MAJOR, OCC: HOUSEHOLD DUTIES,
2
R/O MANAGUNDI VILLAGE,
TALUK AND DIST DHARWAD 580001.
4. GANGAVVA W/O MALLAPPA HADDANNAVAR,
AGE MAJOR, OCC: HOUSEHOLD DUTIES,
R/O NINGANAKOPPA VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 581204.
5. SHIVANAGOUDA IRANGOUDA PATIL,
AGE MAJOR, OCC: AGRICULTURE,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI, DIST DHARWAD 581204.
6. NINGANAGOUDA IRANGOUDA PATIL,
AGE MAJOR, OCC: AGRICULTURE,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI DIST DHARWAD 581204.
7. SHIVANAGOUDA A/F IRANAGOUDA PATIL
AGE MAJOR, OCC: AGRICULTURE,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI DIST DHARWAD 581204.
8. SOMANAGOUDA MAHADEVAGOUDA PATIL,
AGE MAJOR, OCC;AGRICULTURE,
R/O NEERASAGAR VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 582104.
9. BASAVA W/O MAHADEVAGOUDA PATIL,
AGE MAJOR, OCC; HOUSEHOLD DUTIES,
R/O BASARIKOPPA VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 581204.
10. SHANKARAWWA,
W/O BASAVANNEPPA MAETI,
AGE MAJOR, OCC; HOUSEHOLD DUTIES,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI, DIST DHARWAD 581204.
11. CHANABASANAGOUDA BASANAGOUDA PATIL,
AGE MAJOR, OCC: AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI,
DIST DHARWAD 581204.
3
12. YALLANAGOUDA BASANAGOUDA PATIL,
AGE MAJOR, OCC: AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
13. ARJUNAGOUDA BASANAGOUDA PATIL,
AGE MAJOR, OCC: AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
14. ISHWARAPPA BASANAGOUDA PATIL,
AGE MAJOR, OCC:AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI,
DIST DHARWAD 581204.
15. CHANNAVVA W/O FAKKIRAPPA KADDI,
AGE MAJOR, OCC:HOUSEHOLD,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI,
DIST DHARWAD 581204.
16. HANAMANTAPPA KALLAPPA UNKAL,
AGE MAJOR, OCC;AGRICULTURE,
R/O GOKUL HUBLI 580020.
17. KALLAPPA S/O HANAMANTAPPA UNKAL,
AGE MAJOR, OCC; AGRICULTURE,
R/O GOKUL HUBLI 580020.
18. BASAPPA S/O HANAMANTAPPA UNKAL,
AGE MAJOR, OCC; AGRICULTURE,
R/O GOKUL HUBLI 580020.
19. BHIMASI S/O HANAMANTAPPA UNKAL,
AGE MAJOR, OCC; AGRICULTURE,
R/O GOKUL, HUBLI 580020.
20. KUMARI RENUKA D/O HANAMANTAPPA UNKAL,
AGE MAJOR, OCC;HOUSEHOLD WORK,
R/O ADARGUNCHI, TALUK HUBLI 580020.
- RESPONDENTS
(BY SRI S.R. HEGDE, ADVOCATE FOR
R1-R3, R9, R11, R13-R15,
4
SRI SUVARNA S. KUNDAGOL, ADVOCATE FOR R20
NOTICE TO R4-R8, R16-19 SERVED,)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 19.04.2007 PASSED IN O.S.
NO. 201/98 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR. DN.),
DHARWAD, PARTLY DECREEING THE SUIT FOR DECLARATION AND
CONSEQUENTIAL RELIEF OF INJUNCTION & ETC.
IN R.F.A. CR. OB. NO. 6/2008:
BETWEEN:
1. SMT NINGAVVA W/O CHANNAPPA KALAGERI,
AGED ABOUT 68 YEARS, OCC:AGRICULTURE
AND HOUSEHOLD, DUTIES,
R/O TUMARIKOPPA VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 581204.
2. SMT SHANTAVVA W/OO KALLAPPA HULAMANI,
AGED ABOUT 66 YEARS, OCC:AGRICULTURE
AND HOUSEHOLD DUTIES, R/O TARIHAL,
TALUK HUBLI, DIST DHARWAD 580 024
3. SMT KALLAVVA W/O SHEKHAPPA GUNDAGOVI,
AGED ABOUT 61 YEARS, OCC: HOUSEHOLD DUTIES,
R/O MANAGUNDI VILLAGE,
TALUK AND DIST DHARWAD 580001.
4. BASAVVA W/O MAHADEVAGOUDA PATIL,
AGED ABOUT 50 YEARS, OCC; HOUSEHOLD
DUTIES, R/O BASARIKOPPA VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 581204.
5. SHANKARAWWA W/O BASAVANNEPPA MAETI,
AGED ABOUT 16 YEARS, OCC; HOUSEHOLD DUTIES,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI, DIST DHARWAD 581204.
6. CHANABASANAGOUDA BASANAGOUDA PATIL,
AGED ABOUT 44 YEARS, OCC: AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
5
7. YALLANAGOUDA BASANAGOUDA PATIL
ALIAS MALLANAGOUDA PATIL,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE, R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
8. ARJUNAGOUDA BASANAGOUDA PATIL,
AGED ABOUT 38 YEARS, OCC: AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
9. ISHWARAPPA BASANAGOUDA PATIL,
AGED ABOUT 36 YEARS, OCC:AGRICULTURE,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
10. CHANNAVVA W/O FAKKIRAPPA KADDI,
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD,
R/O BASARIKOPPA VILLAGE,
TALUKA KALGHATGI, DIST DHARWAD 581204.
- APPELLANTS
(BY SRI S.R. HEGDE, ADVOCATE)
AND:
1. NAGANAGOUDA ADOPTIVE FATHER,
SRI BASANAGOUDA D. PATIL,
AGED 42 YEARS, OCCUPATION: AGRICULTURE,
R/O KANNINAYAKANAKOPPA,
TALUK: KALGHATGI, DIST.: DHARWAD.
2. SMT. FAKIRAWWA SHIVANNAGOUDA PATIL,
AGED ABOUT 60 YEARS, OCCUPATION: AGRICULTURE,
R/O KANNINAYAKANAKOPPA,
TALUK: KALGHATGI, DIST.: DHARWAD.
3. GANGAVVA W/O MALLAPPA HADDANNAVAR,
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD,
R/O NINGANAKOPPA VILLAGE,
TALUK KALGHATGI, DIST DHARWAD.
4. SHIVANAGOUDA IRANGOUDA PATIL,
AGED ABOUT 51 YEARS, OCC: AGRICULTURE,
R/O KANNINAYAKANA KOPPA,
6
TALUK KALGHATGI, DIST DHARWAD 581204.
5. NINGANAGOUDA IRANGOUDA PATIL,
AGED ABOUT 46 YEARS, OCC: AGRICULTURE,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI DIST DHARWAD 581204.
6. SHIVANAGOUDA A/F IRANAGOUDA PATIL
AGED ABOUT 52 YEARS, OCC: AGRICULTURE,
R/O KANNINAYAKANA KOPPA,
TALUK KALGHATGI DIST DHARWAD 581204.
7. SOMANAGOUDA MAHADEVAGOUDA PATIL,
AGED ABOUT 46 YEARS, OCC;AGRICULTURE,
R/O NEERASAGAR VILLAGE,
TALUK KALGHATGI, DIST DHARWAD 582104.
8. HANAMANTAPPA KALLAPPA UNKAL,
AGED ABOUT 65 YEARS, OCC;AGRICULTURE,
R/O GOKUL, HUBLI, DHARWAD DIST.
9. KALLAPPA S/O HANAMANTAPPA UNKAL,
AGED ABOUT 45 YEARS, OCC; AGRICULTURE,
R/O GOKUL, HUBLI, DHARWAD DIST.
10. BASAPPA S/O HANAMANTAPPA UNKAL,
AGED ABOUT 37 YEARS, OCC; AGRICULTURE,
R/O GOKUL, HUBLI, DHARWAD DIST.
11. BHIMASI S/O HANAMANTAPPA UNKAL,
AGED ABOUT 34 YEARS, OCC; AGRICULTURE,
R/O GOKUL, HUBLI, DHARWAD DISTRICT.
12. KUMARI RENUKA D/O HANAMANTAPPA UNKAL,
AGED ABOUT 30 YEARS, OCC; HOUSEHOLD,
R/O ADARGUNCHI, TALUK HUBLI,
DHARWAD DISTRICT.
- RESPONDENTS
(BY SMT. G. MEERABAI, ADVOCATE FOR R1-R6,
SRI SUVARNA S. KUNDAGOL, ADVOCATE FOR R12)
THIS R.F.A. CR. OB. 6/2008 IN R.F.A. NO. 1871/2007 IS FILED
UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND
7
DECREE DATED 19.04.2007 PASSED IN O.S. NO. 201/98 ON THE FILE
OF THE II ADDL. CIVIL JUDGE (SR. DN.) DHARWAD & ETC.
THIS APPEAL ALONG WITH CROSS OBJECTIONS HAVING
BEEN RESERVED FOR PRONOUNCEMENT OF JUDGMENT AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Appellants in RFA No.1871/2007 are the plaintiff Nos.1 and 2 in an original suit bearing O.S.No.201/1998, which was pending on the file of II Additional Civil Judge (Sr.Dn.), Dharwad. Defendant No.4-Smt.Fakkiravva was transposed as plaintiff No.2 and she is the genetic mother of plaintiff No.1. Respondents herein are the defendant Nos.1 to 3 and 5 to 20 in the trial Court. Parties will be referred as plaintiff Nos.1 and 2 and defendant Nos.1 to 3 and 5 to 20 as per their ranking given in the trial Court.
2. Defendant Nos.1 to 3 and 9 to 15 are the cross objectors in RFA Crob.No.6/2008. The regular first appeal filed under Section 96 of CPC and cross objection filed under Order 41 Rule 22 of CPC have arisen out of the same judgment and 8 decree passed in O.S.No.201/1998. As such, they are disposed of by this common judgment.
3. Plaintiff No.1 is stated to have been adopted by late Basanagouda the father of plaintiff No.2. This plaintiff No.1 is incidentally the grandson of Basanagouda and his wife Basavva. The said Basanagouda and Basavva are no more. Plaintiff No.1 was taken in adoption by Basanagouda and Basavva on 03.05.1977. Defendant No.4 Smt.Fakkiravva, who is the genetic mother of plaintiff No.1, has sailed with her son plaintiff No.1 and therefore, she has got herself transposed as plaintiff No.2. The said Fakkiravva claimed herself to be the legate under the Will stated to have been executed by Basanagouda on 07.10.1994.
4. The facts leading to the filing of the suit for declaration and title and permanent injunction are as follows:
One person by name Dyavanagouda was the propositus. He had two sons namely, Basanagouda and Iranagouda. Basanagouda had a wife by name Basavva and both of them 9 are no more. Basanagouda's younger brother Iranagouda is also no more. Basanagouda died on 25.03.1998. His wife Basavva pre-deceased him. During his lifetime, Basanagouda had taken plaintiff No.1 Naganagouda son of plaintiff No.2- Fakiravva in adoption. Basanagouda is survived by six daughters, namely, Ningavva-defendant No.1, Shantavva- defendant No.2, Kallavva-defendant No.3, Fakiravva- defendant No.4 (transposed as plaintiff No.2 subsequently), Gangavva-defendant No.5 and late Chinnavva who had pre- deceased Basanagouda. Defendant Nos.11 to 16 are the legal representatives of the said Chinnavva. Shivanagouda- defendant No.6 and Ninganagouda-defendant No.7 are the sons of Iranagouda second son of Dyavanagouda. Defendant No.17 to 20 are the collaterals of Basanagouda and they are not the contesting parties. Similarly, defendant Nos.6 to 8 are also not contesting parties, though they are collaterals.
According to the plaintiffs, all the schedule properties except two properties, i.e., 22 acres 12 guntas in Sy.No.19/1B 10 and 1 acre in Sy.No.1 of Amblikoppa are all ancestral properties. These two properties in Sy.No.1 and 19/1B of Amblikoppa are stated to be the self-acquired properties of deceased Basanagouda. House property bearing VPC No.3 is also stated to be the self-acquired property of Basanagouda.
Suit came to be filed for the relief of declaration of title that plaintiff No.1 is the absolute owner of suit properties as he is the adopted son of deceased Basanagouda D. Patil and consequently for permanent injunction restraining the defendants from interfering with the suit schedule properties as described in paragraph 2 of the plaint. According to plaintiff No.1, he had been living in the house of Shivanagouda and enjoying the suit schedule property ever since his adoption and his adoption is evidenced through a registered adoption deed dated 03.05.1977. As a result of adoption, plaintiff No.1 is stated to have become the owner to an extent of half share in the entire property held by Basanagouda. It is his case that Basanagouda i.e., his 11 adopted father has executed a Will in his favour through a registered Will in the year 1981. It is his case that on 07.10.1994, Basanagouda chose to execute another Will in favour of his genetic mother Fakiravva bequeathing 10 acres of land in Sy.Nos.10/A and 19/B of Amblikoppa village and that the said Will was executed by Basanagouda with prior intimation to him. As such, the defendants have nothing to do with the schedule properties and cannot interfere with either their title or possession. With these pleadings, a suit was filed on the ground that the defendants started interfering with their title and possession. The plaint was presented on 05.10.1998 and was registered as O.S.No.201/1998.
Defendant No.3 alone filed detailed written statement. The entire contents of the plaint have been specifically denied and the plaintiff has been called upon to strictly prove the contents of the plaint. It is clearly averred in the written statement that the suit is bad for non-joinder of necessary 12 parties, more particularly, not including the collaterals of Basanagouda. As such, defendant Nos.16 to 20 were subsequently added by the plaintiffs. The averment that plaintiff No.1 is the adopted son of deceased Basanagouda has been specifically denied. It is specifically pleaded that Basanagouda had six daughters and that no formalities of adoption were complied with and that plaintiff No.1 was the only son to Fakiravva and her husband and therefore, he could not have been given in adoption and that the Basanagouda could not have taken his only grandson in adoption. As such, it is averred that plaintiff No.1 does not get anything under so called adoption.
The Will relied upon by the plaintiff has been specifically denied and they have been called upon to prove the contents of the plaint strictly and also to prove the genuineness of the Will. According to defendant No.3, plaintiff No.2-Fakiravva filed a suit in O.S.No.326/1999 along with her son on the basis of the Will before the II Additional Civil Judge (Jr.Dn.), 13 Dharwad. According to defendant No.3, the suit itself is not maintainable either in law or on facts.
5. On the basis of the above pleadings, following issues came to be framed.
i) Whether plaintiff proves that he is adopted son of late Basanagouda?
ii) Whether plaintiff proves that he became owner to the extent of half share held by his adoptive father late Basanagouda and his adoptive father also executed will in his favour in respect of properties held by him and plaintiff has become absolute owner of suit properties?
iii) Whether defendants proves that description of suit properties given by plaintiff is wrong?
iv) Whether defendants prove that the geneology given by plaintiff is wrong?
v) Whether suit of plaintiff suffers for want of necessary parties as contended by them in para 4 of WS?
vi) Whether plaintiff is entitled for the relief sought?
vii) What decree or order?
6. Plaintiff No.1 is examined as P.W.1 and plaintiff No.2 is examined as P.W.6 and four witnesses have been examined 14 on their behalf. As many as 23 exhibits have been got marked. Defendant No.14 is examined as D.W.1 and defendant No.3 is examined as D.W.2. No document has been got marked on their behalf. After hearing the arguments and appreciating the evidence placed on record, the learned Senior Civil Judge has answered issue No.1 in the positive and other issues in the negative. Issue No.6 has been held partly in the positive and partly in the negative. Consequently, suit is partly decreed granting 2/7th share to the plaintiffs together vide considered judgment dated 19.04.2007.
7. Being aggrieved by the inadequacy in the shares allotted by the trial Court, plaintiffs are before this Court by filing a regular first appeal under Section 96 of CPC. The cross objection is filed by defendant Nos.1 to 3 and 9 to 15 on the ground that positive finding given on issue No.1 on adoption is incorrect and improper. Cross objection is filed mainly on the ground that there is no adoption in the eye of law and 15 that the trial Court could not have held the adoption as a valid adoption. Since the case of plaintiff No.1 is based on adoption, the cross objectors have seriously disputed the same.
8. Ex.P22 is the registered Will stated to have been executed by Basanagouda in favour of plaintiff No.1 on 30.04.1981 bequeathing the entire suit schedule property as described in paragraph 2 of the plaint. Ex.P23 is the another registered Will stated to have been executed by Basanagouda in favour of plaintiff No.2 only, bequeathing 10 acres of land situated in Amblikoppa village.
9. The Wills relied upon by the plaintiffs have not been accepted by the trial Court holding that suspicious circumstances surrounded the Will. Accepting the plea of adoption, 2/7th share has been allotted to the plaintiffs together.
10. Several grounds have been urged in the appeal memo filed in RFA No.1871/2007. It is contended that the trial 16 Court has unnecessarily doubted the genuineness of the Will in spite of attestors being examined to vouchsafe the genuineness of the Will. The registration of the Will in the Sub-Registrar's Office at Hubli has been unnecessarily doubted and that has been blown out of proportion to contend that the Will should have been got registered at Dharwad, since Kalaghatagi is nearer to Dharwad than Hubli. The Will relied upon by the plaintiffs have not been accepted by the trial Court on the ground that there is improper disposition in the Will by excluding the natural legal heirs from the benefit of natural inheritance.
11. The main grounds of cross objectors is that, there is no acceptable evidence in regard to the adoption and that plaintiff No.1 being the only son to his parents could not have been given in adoption to Basanagouda contrary to the mandatory provisions of Hindu Adoption and Maintenance Act, 1956. It is further contended that adoption cannot be proved by producing the certified copy of the adoption deed 17 and that there is no convincing explanation about non- production of the original adoption deed. It is contended that if the original adoption deed had been produced, it would have helped the Court in arriving at a proper conclusion regarding the factum of adoption. It is further contended that the very evidence adduced in regard to adoption is self- contradictory and the trial Court could not have relied upon the same to hold that adoption is proved.
12. The learned counsel for the cross objectors has relied upon a decision reported in AIR 1964 SC 136, to contend that only one son cannot be given in adoption or taken in adoption. It is further contended that, when P.W.1 has deposed that original adoption deed is pledged in the bank, steps should have been taken to summon the same from the bank in order to vouchsafe the authenticity of the adoption. It is further argued that adoption of a son would be an important event in the family and it is ununderstandable as to how other daughters of Basanagouda were not invited for 18 such an important function and this is a very strong suspicious circumstance surrounding the alleged adoption. In this context, decisions of the Apex Court reported in AIR 1983 SC 114 and AIR 1980 SC 1754 are relied upon. The decision reported in 2001 AIR SC 2725 between Nilima Mukherjee Vs. Kanta Bhusan Ghosh is relied upon to contend that, there is no due publicity in respect of such an adoption by Basanagouda who had sufficient immovable properties and as many as six daughters. It is further argued that P.Ws.1, 5 and 6 examined in support of the adoption have specifically stated that the relationship of Basanagouda with his other daughters was cordial at all times. Such being the case, it is surprising to note that other five daughters were not at all invited to such an important function, which necessarily required due publicity to the whole world. The trial Court has committed a serious error in accepting the evidence of P.W.5 in regard to the adoption in spite of serious admissions being culled out during his cross-examination, 19 more particularly because his absence at the time of formalities of adoption.
13. It is further contended that certified copy of the adoption deed could not have been admitted in evidence by the trial Court to be acted upon for the purpose of proving adoption in the light of foundation being not laid to lead secondary evidence. In this regard, decision reported in 2007
- LAWS (SC) - 4 - 102 between J.Yashoda Vs. K.Shobha Rani is relied upon. Mere marking of a document does not dispense with the proof, more particularly, in the light of the inconsistent evidence of P.W.5 the attestor.
14. The learned counsel for the appellants has contended that the trial Court has unnecessarily disbelieved the evidence adduced in regard to the proof of Wills. Insofar as the adoption is concerned, it is contended before this Court that Fakiravva the genetic mother is the best witness in regard to adoption and she has deposed to that effect. According to the learned counsel for the appellants, P.W.5 is a 20 disinterested witness and has no axe to grind against the defendants and his evidence is accepted by the trial Court, as he is an attestor. It is contended that when adoption is evidenced by a registered adoption deed, presumption will have to be drawn under Section 16 of the Adoption & Maintenance Act and there is no necessity to prove all the formalities held in connection with the adoption. Ex.P17 is an affidavit stated to have been sworn to by Basanagouda and Naganagouda on 07.05.1987 before Sri.N.Patil, Notary of Dharwad at the time of availing loan by mortgaging 21 acres of land in Sy.No.19/1 of Amblikoppa. Therefore, it is argued that the totality of the circumstances will have to be looked into and stray admissions cannot be blown out of the proportion to doubt the genuineness of adoption, more particularly, when Basanagouda had no male issues. It is further argued that the very book containing the thumb impressions of Basanagouda, Basavva, Fakiravva and Shivanagouda have been summoned from the Sub-Registrar's Office and it has been marked as Ex.P20. P.W.2 who is a 21 responsible official of Sub-Registrar's Office, Kalaghatagi is examined in this regard.
15. The learned counsel for the appellant has argued that there is no legal prohibition in Hindu Adoption and Maintenance Act about adopting the only son. It is argued that Section 10 of the Hindu Adoption Act speaks about the person who may be adopted and Section 11 speaks of other conditions for valid adoption. It is argued that, inhibition to give the only son in adoption was in the Shastric Hindu Law and no such inhibition is found in the codified Hindu Law regarding adoption. Therefore, the decision relied upon by the learned counsel for the cross objectors reported in AIR 1964 SC 136 is distinguishable on facts.
16. What is argued before this Court by the learned counsel for the appellant is that, plaintiff No.2-Fakiravva was still young and had the capacity to procreate children and this is fortified by the birth of 4 male children after plaintiff No.1 was given in adoption. It is argued that if a lady who will have no 22 capacity to procreate gives the only son in adoption, it may be found fault with. It is argued that the said decision is distinguishable on facts, more particularly, in the light of codification of Hindu law.
17. It is in this regard Section 4 of Hindu Adoption and Maintenance Act is relied upon to contend that, with any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, ceases to have effect with respect to any matter, for which provision is made in this Act. The overriding of Hindu Adoption Act, 1956 will have to be looked into before applying the principles enunciated by the Hon'ble Supreme Court in the decision reported in AIR 1964 SC 136.
18. It is vehemently argued by the learned Counsel for the appellant that the precedent should not be blindly followed and that setting of each case under which law is laid down must be looked into. It is in this regard, a decision reported in AIR 2002 SC 834 in the case of The State Financial 23 Corporation and another Vs. M/s. Jagdamba Oil Mills and another is relied upon. It is contended that, one additional or different fact may make a world of difference between conclusions in two cases and therefore, disposal of case by blindly placing reliance on a decision is not proper. It is also argued that no adoption which has been validly made can be cancelled by adoptive father or mother or any person. The authenticity of adoption is stated to have been vouchsafed by acting upon the same and therefore, adoption upheld by the trial Court is just and proper.
19. Per contra, learned Counsel for the cross objector has argued that PW5 is none other than the own son-in-law of second plaintiff and therefore, his is an interested witness and much credence could not have been attached to the same. It is contended that, there is no rigid rule that the Will must be registered in the jurisdictional Sub-registrars office only within whose jurisdiction the properties are situated. It is further argued that, Kalghatagi is nearer to Dharwad than 24 Hubli. Distance between Hubli and Kalghatagi is not too much to doubt the genuineness of the Will, more particularly, Hubli being a very important commercial place in the vicinity of Kalaghatagi. It is argued that exclusion of other daughters cannot be found fault with since they are well placed living happily in the houses of their respective husbands. It is further argued that the intention of the testator will have to be ascertained by applying the concept of Arms Chair theory and nothing should be added or deducted from what is forthcoming in the Will. Therefore, it is argued that there is no improper disposition.
20. It is further argued that, while examining the attestor of the Will, nothing is suggested to them that Basanagouda was not in sound disposing state of mind as on the dates of executing the Wills. The fact that Basanagouda was looking after the properties till his death is not seriously disputed while cross-examining material witnesses examined on behalf of the plaintiff. Therefore, it is argued that the trial Court has 25 assessed the entire evidence in regard to the proof of Will with a suspicion and therefore, the ultimate decision arrived at by the trial Court is wrong and incorrect. What should be the approach of the Court before which the Will is sought to be proved has been dealt with eloquently, according to the learned Counsel for the appellants, in the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao reported in AIR 2007 SC 614. It is argued that the resolute and impenetrable incredulity is demanded from the judge even if grave suspicious circumstances exit.
21. Per contra, the learned Counsel for the cross-objector has argued that, very framing of suit is not proper and therefore, the suit itself is not maintainable. It is argued that the plaintiff, at one breath, has relied upon adoption and at another breath has relied upon the Will and that there is no categorical prayer in regard to declaration of title based on the Will, under which testator is stated to have bequeathed the properties in his favour. It is further argued that the 26 present suit is not maintainable in the light of subsequent suit filed in O.S.No.326/1999 in the Court of Second Additional Civil Judge (Sr.Dn.), Dharwad.
22. It is argued that, no explanation is forthcoming in regard to the circumstances, under which both the Wills had to be got registered in the sub-registrars office at Hubli, though the same could have been registered either at Kalaghatagi, the native taluk of Basanagouda or Dharwad, a city nearer to Kalaghatgi within whose restriction some of the schedule properties are situated. It is argued that the evidence of PWs. 3 and 4, the attestors of the Wills is not in accordance with the mandatory provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act and that they have only spoken about attesting their signatures to their will and not obtaining any oral acknowledgement of Banasagouda having executed the will and asking them to be testators.
27
23. It is further argued that the evidence of PW6 - Fakiravva Shivanagouda Patil itself is sufficient to know that, other daughters are not financially well, though it is mentioned in the Will that, they are happily married and living comfortably in the houses of their respective husbands. It is argued that, in the light of adoption being proved, he is entitled for ½ share and even if adoption were to be held invalid, he is entitled as legatee under the Will of 1977. In this regard, the division bench decision of the Hon'ble Supreme Court reported in AIR 1980 Sikkim 33 in the case of Sonam Topgyal Bhutia Vs. Gompu Bhutia is relied upon.
24. Following substantial points arise for consideration in this appeal:
1. Whether the trial Court is justified in coming to the conclusion that the first plaintiff is the legally adopted son of Basanagouda?
2. Whether the trial Court is justified in holding that the Wills marked as Exs.P22 and P23 are surrounded by suspicious circumstances and they have not been effectively warded off?28
3. Whether suit schedule items 1 to 6 were the ancestral properties and whether suit items 7 and 8 were the self acquired properties of late Basanagouda as averred in the plaint?
4. Whether plaintiffs are entitled for any share and if so to what extent and in what properties?
5. Whether any interference is called for by this Court and if so, to what extent?
6. To what reliefs and decree the parties are entitled for?
REASONS
25. Point No.1: Case of the plaintiffs is that, 1st plaintiff is the adopted son of late Basavana Gouda and his wife and that he was taken in adoption on 03.05.1977. 1st plaintiff is the genetic son of second plaintiff. The fact that Basavanagouda had no sons is not in dispute. He has six daughters inclusive of the second plaintiff and deceased Channavva whose children are defendants 11 to 16 in this case. 3rd defendant has filed detailed written statement denying all the material averments made in the plaint in regard to adoption and plaintiffs have been called upon to prove the factum of adoption. Written statement filed by the third defendant Smt. Kallavva has been adopted and defendants 1, 2, 5 and 10 to 15. At 29 the time of alleged adoption 1st plaintiff was the only male child to the second plaintiff and therefore it is argued that only male child cannot be given or taken in adoption and in this regard decision reported in AIR 1964 S.C. 136 (Addagada Raghavamma Vs. A.Chenchamma) is relied upon by the learned counsel for the defendants. Per contra, the learned counsel for the plaintiffs has argued that there is no legal inhibition in the Hindu Adoption & Maintenance Act, 1956 to take the only male child in adoption. It is in this regard Section 4 of Hindu Adoption & Maintenance Act is relied upon to contend that the text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act ceases to have effect.
26. Admittedly, Sec. 10 of Hindu Adoption & Maintenance Act specks about the persons who may be taken in adoption and Sec. 11 speaks about other conditions of valid Adoption. These two salient provisions in the Act do not legally inhibit the adoption of the only male child. The decision rendered by the Apex Court as reported in AIR 1964 S.C.P.136 has dealt with the adoption of the only male child under Shastric Hindu Law. The adoption was long 30 prior to the commencement of the Act and therefore even if there was custom or usage of not adopting the only male child as per Shastric Hindu Law, i.e., uncodified law, it ceases to have any effect in view of the overriding effect of the new Act as per Sec. 4 of Hindu Adoption & Maintenance Act. Even otherwise, it is to be seen that though plaintiff was the only male child to the second plaintiff in 1977, she gave birth to four male children subsequently and this fact is not at all disputed while cross examining P.W.6 Smt. Fakkiravva, the second plaintiff. The learned counsel for the plaintiffs has argued that if a married lady is capable of procreating creating children even after the adoption of her only male child, the legal inhibition to give in adoption her only child as per uncodified Hindu Law will not have any effect. There is a strong force in the argument advanced by the learned counsel for the plaintiff in this regard.
27. In so far as the oral evidence in regard to adoption, we have the evidence of the plaintiff Nagana Gouda Patil examined as PW-1, PW-2, Sri Shivappa, incharge Sub-Registrar of Kalaghatagi Sub- Registrar's Office, PW-5 Neelappa, who is stated to be an attestor 31 to the Adoption Deed marked as Ex.P.20 and Smt. Fakiravva, the second plaintiff.
28. Insofar as documentary evidence relating to adoption is concerned, we have Ex.P.17, an affidavit stated to have been jointly sworn to by PW-1 Nagana Gowda and late Basavana Gouda on 07.05.1987 in order to avail loan from bank, Ex.P.20 the certified copy of Registered Adoption Deed and Ex.P.21, the thumb impression register maintained in the Sub Registrar's Office at Kalaghatagi and Ex.P.21 (a) relevant sheet stated to be containing the LTMs of late Basanagouda Patil and his wife-Basavannemma, Shivana Gouda and his wife Fakiravva. We have Ex.P.16 an affidavit sworn to by one Neelappa being a witness to the ceremony of adoption and an attestor to the adoption deed.
29. Normally, wherever the factum of validity of adoption is questioned, the burden lies on the person relying on the adoption to prove effectively that valid adoption has taken place. This is required as it will change the line of succession. But the presence of a registered document evidencing adoption changes the situation. When a deed of adoption is produced, it is mandatory 32 on the part of the Court to presume that a valid adoption has taken place. As adoption results in changing the course of succession depriving the rights of wife and daughters and transferring the properties to comparative strangers or more remote relative, it is necessary that evidence to support adoption must be such that it is free from all suspicion of fraud. It must be so consistent and probable as to leave no occasion for doubting the genuineness of the adoption and its truth. The onus of rebutting the adoption shifts from the propounder of the adoption to the person who has questioned, once a registered adoption deed regarding the adoption is brought before any Court. When the execution of a registered deed of adoption is challenged on the ground that it was executed by fraud or coercion or undue influence, and when evidence is adduced in regard to the same, the burden of proof that the execution was so vitiated will be on the party challenging the document evidencing the adoption.
30. In order to raise a presumption regarding adoption as provided u/S 16 of the Hindu Adoption & Maintenance Act, 1956, conditions to be complied are (1) there must be a written document and it must be registered under law in force; and (2) Such 33 documents recording adoption which has taken place must be signed by both the giver and taker of the child in adoption and (3)that such document must be produced before the Court.
31. In the present case, the persons who had taken the first plaintiff in adoption are no more. According to the plaintiffs, adoptive father Basavanagouda patil and adoptive mother Basavannemma, who were alive at the time of taking adoption and that they took the first plaintiff in adoption and the second plaintiff and her husband gave plaintiff in adoption. From the materials placed on record it is evident that Basavannemma, the alleged adoptive mother died on 10.06.1981 and this is evident from Ex.P.10, the death certificate of Basavannemma and Ex.P.11 is the death certificate of Basavanagouda Patil. He died on 25.03.1998.
32. We have the evidence of P.W.6 Fakiravva, the genetic mother of the first plaintiff. We have the evidence of Neelappa examined as P.W.5 in regard to adoption. He is an attestor to the adoption deed marked as Ex.P.20. Since Ex.P.20 is the certified copy of the adoption deed and original is not produced, the vouchsafe due registration, plaintiffs have the thumb impression register 34 summoned from the Sub Registrar's office of Kalaghatagi, Dharwad District in whose office the adoption deed, according to the plaintiff was registered. Ex.P.21 is the thumb impression register maintained for the period from 23.08.1976 to 19.08.1977. Ex.P.21(a) is the relevant sheet containing the LTMs of deceased Basavanagouda Patil, Basavannemma, Shivana Gouda, Fakiravva, the genetic parents of the first plaintiff. It bears LTMs of Basavanagouda, Shivanagouda, Basavannemma and Fakiravva. The incharge Sub-Registrar of Kalaghatagi Sub Registrar Office has produced Ex.P.21 and he is a disinterested witness. P.W.2 Shivappa Channappa was the incharge Sub Registrar of Kalaghatagi Sub Registrar Office and he appeared before the Court and produced Ex.P.20-thumb impression register. The relevant portion containing LTMs of these persons is marked as Ex.P.20(a). Ex.P.20(b) is the certified copy of the adoption deed taken out from the volume in which it had been entered.
33. P.W.2 has deposed that signatures of the witnesses will not be taken. Thumb impression register contains thumb impressions of the executors that is adoptive parents and genetic parents. He has been cross-examined at length. Nothing has been culled out 35 from his mouth to discredit his deposition more particularly P.W.2 being a disinterested witness.
34. The exercise of getting the thumb impression register was done by the plaintiffs in the light of original partition deed being not produced before the Court. What is argued before this Court by the learned counsel for the defendants is that non production of the original adoption deed, would give rise to an adverse inference u/S 114(g) of the Evidence Act. This limb of argument does not hold good in the light of plaintiffs getting the thumb impression register from the Sub Registrar's Office and responsible officer testifying to that effect. It is true that P.W.1-Nagannagouda Patil has deposed that the original adoption deed has been produced before the Canara Bank at the time of availing loan by mortgaging agricultural lands. It is true that he could have taken steps to summon the original adoption deed from the bank but he has produced Ex.P.17, an affidavit sworn to by himself and Basavanna Gouda Dyamannagouda Patil jointly on 07.05.1987 before S.N.Patil, Notary Public of Hubli Dharwad Corporation Area. In Ex.P.17, the affidavit, it is mentioned that Land Tribunal, Dharwad has conferred occupancy right on Basannagouda on 01.07.1976 in 36 respect of 21.32 acres of land in sy. No. 19/1 of Ambalikoppa and registration certificate is issued by the Special Tahasildar in Form No. 10 and the same is missing. In para no. 2 of Ex.P.17 it is further mentioned that second dependent Sri N.B. Patil, i.e., Nagannagouda Patil is the adopted son of first dependent B.D. Patil and that both of them have not deposited the certificate issued in form no. 10 to any Bank or anybody. In the second page of Ex.P.17 there is a specific endorsement made by the Notary Public that the affidavit was solemnly affirmed before him by both the persons who were identified by Sri S.L. Jadhav, Advocate of Dharwad. It bears the signature of Notary Public and below his signature, date is mentioned as 07.05.1987. The said affidavit marked as Ex.P.17 bears the Notary Public seal of Sri S.N. Patil.
35. Under Section 57(6) of Evidence Act Courts have to take judicial note of the seals of Notary Public. The mandatory verb 'shall' is used in Sec. 57. Therefore, the Court before whom the notarized document is produced, it has to take judicial notice of the seals affixed thereon and therefore a presumption has to be raised regarding the genuineness of the seal of the said Notary. The purpose of Sec. 57(6) and 85 of Evidence Act is to cut down in 37 recording of evidence in regard to the due execution. The authentication done under Section 85 is not merely attestive but it means that the person authenticating is assured himself about the identity of the person who has signed the document as well as fact of execution. It is for these reasons that the presumption u/S 85 r/w Sec. 57(6) of the Evidence Act can be raised in this case. Deponents of Ex.P.17 have been identified by Sri S.L. Jadhav, a practicing Advocate and a specific authentication is made to that effect by the Notary Public in the second page of Ex.P.17. By no stretch of imagination Ex.P.17 could be considered as a got up document or an invalid document. Therefore, the totality of these two documents, namely, the register summoned from the Sub Registrar's Office which contains the thumb impression of the persons giving and taking in adoption and Ex.P.17 would support the case of adoption.
36. What is argued before this Court is that P.W.1 being the adopted son and being a beneficiary, is an interested witness. It is further argued that P.W.6 Fakiravva, the genetic mother is also an interested witness. It is further argued that P.W.5-Neelappa, examined on behalf of the plaintiff is the son in law of P.W.6- 38 Fakiravva and therefore he is also an interested witness. Just because PW.5 is related to P.W.1 and 2, his evidence cannot be rejected outright, unless there is an element of interestedness. Neelappa, examined as P.W.5 is also a resident of Kanninayakanakoppa, in which village Basavanagouda lived till his death. What is deposed by him is that he participated in the ceremony of adoption that took place in 1977 and that Dyamanagouda Patil took first plaintiff Naganagouda Patil in adoption and that he was present at that time. In his examination in chief he has deposed that the adoption ceremony was performed in the house of Basanagouda Patil and the parents of Naganagouda Patil and relatives of both the sides were present. It is stated that Shivanagouda and Fakiravva physically handed over Naganagouda Patil to Basavanagouda Patil and prior to that Naganagouda was made to sit on the lap of Shivanagouda and Fakiravva. According to him, a photo was taken out in regard to the adoption and sugar was put to the mouth of Naganagouda and sweet was distributed to all those who were present. It is his case that after the function, he went to Sub Registrar's Office along with them and a deed was registered to that effect and at that time 39 Basavanagouda Patil, his wife Basavva, his daughter Fakiravva and his son in law Shivanagouda subscribed their signatures. It is his case that Teertappa Badiger, Ramanna Pasle, Sankappa Lakkappa Manjaragi, Basavanneppa Kallappa, Sivanagouda Kunkur, Gareppa Gadigeppa Kamatar were present. According to him, Teertappa Badiger, Ramanna Pasle, Kunkur, Ramani, Gadigeppa and Kamatara are no more.
37. P.W.1 Naganagouda Patil was aged 9 years at the time of adoption. He has reiterated the contents of the plaint in the affidavit filed in lieu of examination in chief. Of course he has been cross examined at length by the learned counsel for the defendants. He has feigned ignorance as to whether his mother's sisters have subscribed their signatures to the adoption deed, but he has asserted that his genetic father and witnesses have subscribed their signatures. A suggestion is put to him that he has purposefully avoided in getting the original adoption deed from the bank and the same has been specifically denied. Production of Ex.P.17, the affidavit sworn to by Basavanagouda and P.W.1 supports his case that he is the adopted son. Suggestion put to him that Ex.P.17 was created in Sub-Registrar Office, has been 40 specifically denied. The cross-examination of P.W.1 is more focused towards due execution of wills stated to have been executed by Basanagouda.
38. It is vehemently argued that the evidence of P.W.5-Neelappa cannot be given much credence as he is the son in law of second plaintiff and brother in law of first plaintiff. He is also a resident of Kanninayakanakoppa. He has deposed in his examination in chief that he attended adoption ceremony that took place in the residence of Basanagouda in the year 1977 and he has attested the document evidencing adoption. He has identified the affidavit filed by him before the Court of Senior Civil Judge at Dharwad on 03.10.1998. Suit was filed on 05.10.1998 and it is two days prior to the filing of the suit. Ex.P.16 is the affidavit of Neelappa in corroboration of his presence on 03.05.1977 at the time of adoption and having attested the adoption deed.
39. His evidence is sought to be impeached on the ground that he did not put his signature on the instructions of Basanagouda but on the instructions of one Shivanagouda. Of course he has feigned ignorance as to who has signed the said document in his 41 presence. He has further feigned ignorance about the presence of daughters and sons in law of Basanagouda at that time. He has deposed that he had not attended any function prior to that day or after that day in the house of Basavanagouda. Of course P.W.5 is a rustic villager and an illiterate. Nothing is culled out from his mouth to discredit his deposition insofar as it relates to adoption ceremony that took place in the house of Basavanagouda and the attestation of adoption deed.
40. The use of words 'purporting to record an adoption' shows that what is intended is that the fact of adoption should be recorded in the document. The adoption need not necessarily be contemporaneous with the document. The document can come into being at a later point of time reiterating the factum of adoption. Mere raising a doubt about an adoption is not rebutable when a Court draws presumption u/S 16 of Hindu Adoption Act, 1956 in favour of an adoption relying upon a deed of adoption, it is to be rebutted by leading credible evidence.
41. It is to be seen that the attestors to Ex.P.20, the adoption deed are the residents of Kanninayakanakoppa of Kalaghatagi 42 Taluk. There is a specific reference that himself and his wife Basavannemma have subscribed their signatures. Signature of Shivanagouda, the genetic father also finds a place in the adoption deed apart from the LTM of Fakiravva, the second plaintiff. Therefore the signatures of the persons giving in adoption and taking in adoption are found in the adoption deed and vouchsafed by production of thumb impression register from the jurisdictional Sub Registrar Office.
42. Smt. Fakiravva has also spoken about her participation in the adoption ceremony. She has specifically deposed that first plaintiff was put on her laps and the laps of her husband and then she physically gave her son to her father and mother. She has deposed that the ceremony in regard to the adoption took place in the house of her father and at that time first plaintiff was aged about 8 years. It is her case that plaintiff no.1 was physically given by herself and her husband to her father and mother and later on plaintiff no.1 was made to sit on their laps. According to her, several elders of the village were present and sugar was put into the mouth of P.W.1 and later on Sugar was distributed and a photo was taken. After that, food had been arranged for all those 43 who were present. The entire focus of the cross examination of P.W.6 is in regard to the suspicious circumstances surrounding the execution of the two Wills.
43. What is argued before this Court is that, alleged adoption is doubtful since other daughters of Basavanneppa were not at all invited, more particularly when they were in good terms with their parents. It is true that the evidence placed on record by the plaintiffs do not disclose the presence of the other daughters of Basavanagouda at the time of adoption. But she has asserted in her cross examination that Gadiyappa Kamatara, Ramappa Pachadi, Thirthappa Badigera, Neelappa Kurubara, Kallappa Mandaragi, Yallappa were present at that time. Suggestion put to her that adoption deed has been concocted to knock of the property, has been specifically denied.
44. Though P.W.5 has been cross-examined at length, nothing could be imputed to him about the so called creation of the document more particularly when the document is registered in accordance with the provisions of Indian Registration Act. 44
45. It is clear from Sec. 16 of the Hindu Adoption Act that once registered document of adoption is produced before any Court regarding the factum of adoption and it is signed by the persons giving and taking the child in adoption, the Court has to presume that adoption has been in compliance with the provisions of this Act. In the first place, presumption is almost conclusive but is rebuttable provided that adoption is disproved. From the evidence on record, it is evident that the trial Court has drawn presumption available u/S 16 of the Adoption Act, and same cannot be found fault with. Even after reassessment of the entire evidence this Court does not find any ground to interfere with the finding of the trial Court in regard to the factum of adoption. Hence point no.1 is answered in the affirmative.
46. Point No.2: The case of the first plaintiff is that all the suit schedule properties had been bequeathed in his favour by his adoptive father Sri Basanagouda through a Will and the same is registered. It is the case of the second plaintiff that subsequently alteration was made to the earlier Will, on 7.10.1994 bequeathing 10 acres of land in sy. No. 19/A and 19/B of Amalikoppa village out of total extent of 21 acres 32 guntas. Ex.P.22 is the registered 45 Will dated 30.04.1981 executed in favour of the first plaintiff. Ex.P.23 is the registered Will executed in favour of second plaintiff on 07.10.1994. Both these wills marked as Ex.P.22 and Ex.P.23 have been registered in the office of Sub Registrar at Hubli. The trial Court has come to the conclusion that propounder of these Wills have not effectively proved the aspect of due execution of the Will. The suspicious circumstances surrounding these two Wills, according to the learned counsel for the defendants are that instead of getting these wills registered either in the Sub Registrar's Office at Kalaghatagi or Dharwad, within whose jurisdiction the properties are situated, the Wills have been got registered in the Sub Registrar Office at Hubli which is comparatively at a greater distance from Kanninayakana Koppa, the village in which Basanagouda lived. The trial Court has come to the conclusion that Basanagouda was illiterate and plaintiff no.2, the genetic mother of plaintiff no.1 and her husband were present and took active role when the alleged Will was executed. The Will can be held to be not proved if the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances and when the propounder himself or herself takes 46 prominent part in the execution of the Will which confers on him or her substantial benefit. The decision reported in AIR 2007 SC 614 (Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao & Others) speaks to that effect. Failure to remove suspicious circumstances by placing satisfactory evidence would come in the way of the propounder.
47. Admittedly, second plaintiff is not the only daughter of Basanagouda. He has 4 more daughters and another daughter Channamma had predeceased him. Her legal representatives are also on record. In the Wills marked as Ex.P.22 and 23 it is forthcoming that he was in good terms with his daughters and that they were happily living in the houses of their respective husbands. Of course no specific evidence is placed on record to show that his daughters are in a vulnerable condition but the evidence on record would go to show that the husbands of his daughters have about 8-9 acres of land each. Similarly, Fakirawwa's husband also has sufficient land as his share from his natural family. Kallavva, one of the daughters of Basanagouda examined as DW2 is given in marriage to the son of the sister of deceased Basanagouda. If both these Wills are to be executed, his grandchildren born through 47 Channavva and other daughters, will not get anything. The disposition made under these Wills appears to be most unfair more particularly when his other daughters were also in good terms with him.
48. Apart from this, evidence of P.W.1 who is the beneficiary under Ex.P.22 has deposed that himself and his mother were present when the Will was executed and got registered at Hubli. Neelappa who is one of the attestors to the Will is none other than the son in law of P.W.6 Smt. Fakiravva. About the cordial relationship of Basanagouda with other daughters, P.W.3 Basavaraj has deposed positively. P.W.5 has admitted that Basanagouda was very much advanced in his age when the Will was executed. Of course he has pleaded ignorance about the presence of his mother in law and brother in law at the time of execution of the Will.
49. P.W.6 Fakiravva has admitted that if one has to go from Kanninayakanakoppa to Hubli, one need not go via Dharwad. If adoption deed could be registered in the jurisdictional Sub 48 Registrar Office at Kalaghatagi it is un-understandable as to why both these wills were got registered in Hubli.
50. P.W.6 has also admitted her presence at the time of executing the Will and the registration thereof. The active participation of plaintiff nos.1 and 2 at the time of execution of the Will marked as Ex.P.22 and Ex.P.23 and the improper and unfair disposition of land are strong circumstances. No specific reasons are assigned in the Will in order to exclude other daughters and grandchildren from the benefit of the legacy. Mere mentioning in the Will that his other daughters are married and happily living in the house of their respective husbands would be insufficient. This assumes more importance in the light of not giving anything to Kallavva, who is married to none other than the son of his own sister. In the light of these two important suspicious circumstances, the learned Judge of the Trial Court has taken into consideration the aspect of getting the Wills registered at Hubli instead of at Dharwad or at Kalaghatagi, within whose jurisdiction the schedule properties are situated. Therefore, the finding of the trial Court in regard to the inability of the plaintiffs to prove the Wills marked as Ex.P.22 and 23 to the satisfactionof the court will 49 have to be upheld. The trial Court has adopted right approach and no grounds are made out to interfere with the said finding. Hence point no.2 is answered in the affirmative.
51. Point No.3: Plaintiffs have specifically averred that items 1 to 6 are ancestral properties and items 7 and 8 and residential houses in Kanninayakanakoppa as described in the plaint are his self acquired properties whereas defendants have denied the same. According to them all the schedule properties were the ancestral properties of Basanagouda. If the averment of plaintiffs were to be accepted that item no. 7 and 8 and two houses are the self acquired properties, defendants will get equal right. The fact that other items had fallen to the sahre of Basanagouda at a partition that took place between himself and his brother, item nos.1 to 6 will have to be held as his ancestral properties and the remaining properties are his self acquired properties.
52. The trial Court has come to the conclusion that since Basanagouda had no income other than from agriculture, he did not possess any property of his own and the properties described as self acquired properties, have been acquired out of the funds of 50 the joint family. But there is no clinching evidence to that effect. Therefore, the averment of the plaint para no.2 will have to be accepted. Hence point no.3 is answered in the affirmative holding that item nos.1 to 4 are the ancestral properties of Basanagouda and the remaining properties are his self acquired properties.
53. Point No.4: The trial Court has allotted shares by applying the provisions of Sec. 6 of Hindu Succession Act which has stood amended with effect from 09.09.2005. Therefore, the married daughters are also, according to the trial Court, entitled for equal share along with the first plaintiff Naganagouda. If Sec. 6 as amended with effect from 09.09.2005, of Hindu Succession Act, 1956 is applied, question of difference in shares does not arise since all the parties will be entitled to equal sahre.
54. Learned counsel for the appellant has relied upon a Division Bench decision of High Court of Bombay reported in AIR 2012 Bombay 105, to contend that Sec. 6 as amended with effect from 09.09.2005 is prospective in nature and therefore the said Section is to be made applicable to the parties in the present case as the litigation commenced in 1998, the year in which the succession 51 opened due to the death of Basanagouda. But in the light of a Division Bench of this Court in the case of Pushpalatha Vs. Padma reported in ILR 2010 KAR 1481, relied upon by the learned counsel for the cross objectors, Sec. 6 is held to be retrospective in nature and is applicable to the pending proceedings also irrespective of the fact whether the daughters are married or not. Therefore, this Court is constrained to follow the said latest decision in Pushpalatha's case reported in ILR 2010 KAR. 1481 more particularly the decision in Pushpalatha's case being the latest one on the same point by a bench of equal strength of this Court.
55. Reliance is placed upon a Division Bench decision of this Court in Pruthviraj's case in which it is stated that law applicable as on the date of opening of succession among Hindus governs the suit for partition. But in the light of the latest decision of this Court in Pushpalatha's case, the approach adopted by the trial Court in granting equal share to Naganagouda and his 5 daughters and the children of late Channamma cannot be found fault with. Therefore, the quantum of share allotted by the trial Court is consistent with the decision in Pushpalatha's case. 52
56. Hon'ble Supreme Court in the case of Ganduri Koteshwaramma & Anr. V. Chakiri Yanadi & Anr. (AIR 2012 SC 169) has held that, the right accrued to a daughter in the property of a joint Hindu family governed by the Mithakshara Law, by virtue of 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. A partition can be effected either by a registered instrument of partition or by a decree of the Court. The decree of the Court can be considered to have attained finality until a final decree drawn in a suit for partition, is engrossed on requisite stamp paper.
57. In the present case there is no deed evidencing partition between the parties. The only stage that has reached in this case is an appeal filed against the preliminary decree drawn by the trial Court. The preliminary decree determined the rights and interest of the parties and a suit for partition will not be disposed of until a final decree is drawn by partitioning the properties by metes and bounds and thereafter engrossing the same on the requisite stamp paper. It is in this regard the relevant observation made by the Hon'ble Supreme Court in Ganduri Koteshwaramma & Anr. V. 53 Chakiri Yanadi & Anr. (AIR 2012 SC 169) is relevant and extracted below:
"15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 54 2005 Amendment Act although final decree for partition has not yet been passed.
16. The legal position is settled that partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before December 20, 2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the respondent no.1 is the determination of shares vide preliminary decree dated March 19, 1999 which came to be amended on September 27, 2003 and the receipt of the report of the Commissioner."
58. Point No.5: In view of the finding on point nos.1 to 4, no interference is called for by this Court and the appeal and the cross objections will have to be dismissed.
59. Point No.6: In view of the findings on point nos.1 to 5, both the appeal and the cross objections will have to be dismissed by upholding the judgment of the trial Court.
ORDER Appeal filed u/S 96 of CPC filed by the plaintiffs challenging the judgment and decree passed in O.S. No. 201/1998 insofar as it 55 relates to the negative finding on the Wills, is dismissed. The cross objections filed under Order 41 Rule 22 of CPC insofar as it relates to the finding on adoption of Naganagouda is also dismissed.
The shares allotted by the trial Court to the plaintiff nos.1 and 2 at 1/7th share each is upheld.
In view of the relationship of the parties there is no order as to costs.
Sd/-
JUDGE.
MBS/GAB/BVV